An appeal against a decree dismissing a suit for recovery of possession. The appellant claimed partitioned share in her father's property; the court held the property to be self-acquired, partition documents unproven, and title unestablished, dismissing the appeal.
Appeal dismissed; decree and judgment of trial Court confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE V.SRINIVAS
APPEAL SUIT No.114 of 2006
JUDGMENT:
This regular appeal under Section 96 Code of Civil Procedure (hereinafter referred to as ‘CPC’) is directed against the decree and judgment in O.S.No.235 of 2001 dated 18.10.2005 on the file of the Court of learned II Additional Senior Civil Judge, Vijayawada.
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(i) The 1st respondent, who is the father of the appellant, had owned and possessed an extent of Ac.0.90 cents of land situated in R.S.No.137/2, Patamata, Vijayawada and the funds to acquire the said property was provided to the 1st respondent by his maternal grandparents and thus ever since the acquisition of the said property was treated as family property of the 1st respondent.
(ii) The appellant being a female has got right of maintenance in the said property, with such an intention, to give some property to the appellant as pasupukunkuma, partitioned the said property by metes and bounds and allotted Ac.0.15 cents towards her share. (iii) The said partition took place on 02.05.1970. The appellant was married in the month of February 1979 and the property, which was allotted to the appellant in the partition, was handed over to her. (iv) On 02.05.1983, a list of partition was executed between parties, which was duly notarized before a notary
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Sri A.S.Rama Rao, Vijayawada. Thus, the appellant came into possession of the said property i.e., Ac.0.15 cents with absolute rights and the plaint schedule property is part of the said property.
(v) The respondents in collusion created a suit in O.S.No.546 of 1991 filed by the 2nd respondent against the 1st respondent on the basis of an alleged agreement of sale said to be executed by the 1st respondent and the 1st respondent was set exparte in the said suit and a decree was passed in favour of 2nd respondent and on 25.02.1992, the 1st respondent was executed a sale deed in favour of the 2nd respondent. The above referred facts came to the knowledge of the appellant only in the suit proceedings in O.S.No.315 of 1992 and when the 1st respondent is not having right over the schedule property or on the remaining property, the documents executed by him will not bind on the appellant.
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(vi) The title of the appellant was confirmed by the competent court of law on 08.12.2000 by decreeing the suit filed by her in O.S.No.190 of 1992.
(vii) The 2nd respondent has been in the possession of the schedule property since May, 1992 after obtaining an exparte interim orders from the Court. As such, as per the provisions of Limitation Act, the suit claim of the appellant is in time and the appellant is entitled to get the possession of the plaint schedule from the 2nd respondent. Since, the respondents have not chosen to comply with the request of the appellant and not chosen to handover the possession of the plaint schedule, she was constrained to file the suit.
(i) The plaint schedule property is the self-acquired property of the 1st respondent having purchased the same under Registered sale deed dated 02.04.1960 bearing document No.1059/1960, along with some other
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properties, with his own funds as an employee in Railways.
(ii) The 1st respondent sold Ac.0.16 cents site in favour of A.Rama Mohana Rao, which is the northern side of the plaint schedule property under Registered sale deed dated 09.01.1985 bearing document No.121/85 after obtaining urban land ceiling permission. He also sold 290.4 square yards of the site along with thatched shed situated therein to one A.Narayana Swamy under Registered sale deed dated 16.07.1981 bearing document No.7543/1981. He also sold 50 square yards of site in favour of Ch.Ratna Kumari under Registered sale deed dated 21.10.1998 bearing document No.3178/1998. Similarly, the 2nd respondent purchased an extent of 364.4 square yards of
the site in R.S.No.137/2 from the 1st respondent for consideration of Rs.71,000/- under agreement of sale dated 10.09.1985. The said agreement of sale was opposed by Nanchara Rao, who is son of 1st respondent. In the sale deed executed by the 1st respondent, it is
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clearly recited that the property was the self-acquired property of the 1st respondent.
(iii) Since the 1st respondent evaded to execute registered sale deed in favour of 2nd respondent, she filed a suit for specific performance of agreement of sale against the 1st respondent in O.S.No.546/1991 on the file of II Additional Senior Civil Judge, Vijayawada. Ultimately the said suit was decreed on 25.02.1992. Subsequently, the 1st respondent executed the sale deed in pursuance of the said decree on 25.02.1992 bearing document No.1103/1992 after obtaining urban land ceiling permission. Either during the suit proceedings or subsequently, the 1st respondent never pleaded about the alleged partition claimed by the appellant.
(iv) Subsequent to the execution of the registered sale deed by the 1st respondent, the appellant and her husband N.Krishna Rao tried to interfere with the possession and enjoyment of the schedule property. Thereupon, the 2nd respondent filed a suit against the
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appellant and her husband in O.S.No.315/1992 on the file of Principal Junior Civil Judge’s Court, Vijayawada for permanent injunction restraining them from ever interfering with the peaceful possession and enjoyment of the schedule property and with the construction of the building made by her. On its merits, the said suit was decreed. The appellant did not prefer any appeal and the said judgment became final and the same is binding on the appellant.
(v) Even after the long drawn legal battle, the appellant failed to implead the 2nd respondent in the suit vide O.S.No.190 of 1992 knowing fully well that the 2nd respondent purchased the schedule property and constructed a building also. The appellant obtained a decree behind the back of the 2nd respondent and hence the decree is not binding on her. The said decree is nothing but exparte decree.
(vi) The alleged partition, as well as the partition relied on by the appellant, never took place and the alleged
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partition list was brought into existence by fabrication. The 2nd respondent has been in possession of and enjoyment of the schedule property since 10.09.1985. The son of the 1st respondent Nanchara Rao and another daughter Rama Devi are also necessary parties to the suit and the suit is bad for non-joinder of necessary parties. There is no cause of action for the suit and prays to dismiss the suit with costs.
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entitled for recovery of possession; that the plaint schedule property in O.S.No.315 of 1992 and the plaint schedule property in the present suit are different and the decree in the said suit is not binding on the appellant; the findings of the trial Court are bad in law and thereby prays to allow the appeal.
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17. POINT NOs.1 TO 5 :
Before answering the above points, the legal position has to be kept in mind that in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple1 , the law is stated in the following terms:
“ 29 . In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in Addagada Raghavamma v. Addagada Chenchamma [(1964) 2 SCR 933 : AIR 1964 SC 136] there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been
1 (2003) 8 SCC 752
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able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title.”
2 (2006) 5 SCC 558
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partition and the said partition took place on 02.05.1970 itself and her father duly handed over her share at the time of her marriage held in the month of February 1979.
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Seetharam stating that she purchased part of the schedule property by way of agreement of sale, she has been in possession and enjoyment and sought for injunction and the said suit was decreed, as such the said Seetharam was in possession of the suit property and the said suit was filed for limited purpose of injunction.
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Railways and he purchased total extent of Ac.0.90 cents, which is part of suit property vide sale deed dated 02.04.1960 (which is an admitted fact from the testimony of P.W.1). She does not know what happened in the suit filed by defendant No.2. She has no disputes with her sister Ramadevi. It is further admitted by P.W.1 that defendant No.2 filed O.S.No.546 of 1991 against her father and the same was decreed even before filing of her suit for declaration in O.S.No.190 of 1992. 26. The following points, which are elicited from the testimony of P.W.1 during cross examination, are very important to determine the controversy that “the original partition document is with her elder brother. Four sets of documents were prepared for partition of the properties, all the parties signed on all the four documents. The notary attested all the four documents and each of them have taken one set of documents. She kept her document with her father. She is not in possession of original with her. Her younger sister gave the photostat copy of document to her. She obtained Ex.A.1 from her sister about 10 years back. She does not remember after what time of execution
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of Ex.A.1, the photostat copy of partition document was given to her. Her younger sister obtained a photostat copy and gave the same to her at her house. They partitioned the property in the year, 1970. The property was partitioned by metes and bounds, by fixing stones. She was not married at that time. She was not present while the measurements for the land were taken place. Her brother was not married by the date of Ex.A.1 and her father was in service. She does not know the reason for partition during her minority. She does not remember in which class she was studying by the year 1970. She does not know whether her sister was going to the school by the date of Ex.A.1. She does not observe where the original of Ex.A.1 was typed. Ex.A.1 was prepared in the year 1970. She cannot say to whom the signature No.2 in Ex.A.1 belongs to. In the signature Nos.1 and 4, the handwriting is similar. Nobody attested Ex.A.1. No attestors were present at the time of Ex.A.1”.
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is not taken from her father when she filed declaration suit. She further admitted that one set of signed documents of Ex.A.1 is with her sister Ramadevi and she has no disputes with her and admittedly the said Ramadevi also remained exparte in the suit. P.W.1 is not stated anywhere as to why she did not obtain original of Ex.A.1 either from her father or her sister and filed into the Court and as defendant No.1 totally denied the said document, it is the specific contention made by defendant No.2 that Ex.A.1 is a fabricated one, no such document is executed and it is created by the plaintiff for the purpose of this suit, it is for the plaintiff to prove that there is a partition took place. 28. More so, it is further elicited, at one stretch she says that partitioned list was provided in four sets of the document and all the sets were signed by all the parties and one set was taken by each of the parties of said document and the document of plaintiff was kept with her father and rest of the parties were having their set of partition list. When the plaintiff seeking declaration of title to the suit property, mainly relying upon the said document, she ought to have placed the original document
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and for the reasons best known to her, she did not file original of Ex.A.1 or not obtained either from her father or sister or not summoned defendant Nos.3 and 4 to produce the said document, if really such partition list is in existence. In another stretch, she says that Ex.A.1 is a photostat copy of partition document was given to her by her sister at her house, when original document is with all the parties, it is not explained by the plaintiff why she was given a photostat copy of the document alone.
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was purchased from the sources provided by her father’s maternal grandparents, she would have placed evidence to prove the same. But the entire pleadings and evidence of plaintiff are silent with regard to that fact.
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defendant for a consideration of Rs.71,000/- under agreement of sale dated 10.09.1985.
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executed a sale deed. Admittedly, plaintiff did not add the defendant No.2 as party in the suit filed by her for declaration. When the plaintiff did not explain the reason for not to implead the defendant No.2 as party in the said suit for declaration and without impleading the defendant No.2 as party in the said suit, burden is heavily on the plaintiff to prove that she has right to seek possession of the property from defendant No.2. In particularly, by virtue of agreement of sale dated 10.09.1985, defendant No.2 is in possession and enjoyment of the suit schedule property and made constructions therein. Without discharging the said burden, the plaintiff is not entitled to seek relief of recovery of possession simply because she obtained a declarative decree, wherein defendant No.2 is not a party, defendant No.1 just a month subsequent to the date of filing of the suit died, remaining defendants did not contest the suit and without establishing her right and her source of title mere filing of photostat copy of partition list is not suffice to say her title was declared and entitled for recover of possession of the suit property.
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been in possession and enjoyment of the plaint schedule property since 1.09.1985. Thus, these points are answered accordingly.
40. POINT No.6 :
In view of the findings on point Nos.1 to 5, this Court does not find any grounds to interfere with the judgment and decree of the trial Court and as such the appeal is liable to be dismissed.
______________________ JUSTICE V.SRINIVAS
Date: 04.10.2023 Krs
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1
THE HON’BLE SRI JUSTICE V.SRINIVAS
APPEAL SUIT No.114 of 2006
DATE: 04.10.2023
Krs
3 issues framed by the court
Whether the plaint schedule property is self-acquired property of 1st respondent?
Whether the alleged oral partition dated 02.05.1970 is true?
Whether the plaintiff established her title over the plaint schedule property?
Colour shows how this judgement treated each authority
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. TempleApplied¶57
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple (2003) 8 SCC 752 · Who else cites this
Addagada Raghavamma v. Addagada ChenchammaExplained¶58
Addagada Raghavamma v. Addagada Chenchamma [(1964) 2 SCR 933 : AIR 1964 SC 136] · Who else cites this
Anil Rishi v. Gurbaksh SinghFollowed¶62
Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 · Who else cites this
1 provisions across 1 enactments
Appellant/Plaintiff
Respondent No. 2
Justice V. Srinivas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
