Second appeal against dismissal of appeal in suit for declaration of title and recovery of possession. The court upheld concurrent findings of lower courts rejecting claims of oral partition, lack of proper title trace, and irrelevance of possession evidence due to trespass allegations.
Second appeal dismissed with no costs.
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THE HONOURABLE SRI JUSTICE N.V. RAMANA
SECOND APPEAL No. 1082 of 2011
Judgment:
This second appeal is directed against the judgment and decree dated 31.08.2010, passed by the District Judge, Chittoor, dismissing the appeal in A.S. No. 164 of 2005, filed by the appellants questioning the judgment and decree dated 25.01.2005, passed by the Junior Civil Judge, Pakala, Chittoor, decreeing the suit in O.S. No. 265 of 1990, filed by the respondents for declaration of right and title in respect of plaint ‘A’ schedule property and for recovery of possession of plaint ‘B’ schedule property.
Heard the learned counsel for the appellants and perused the judgments under appeal.
Though the appellants contended that out of an extent of Acs. 4.08 cents in Sy. No. 82/2, in the oral partition that was effected between Gurappa and their family members, an extent of Acs. 2.04 cents fell to the share of Gurappa, and that after his death, his wife Bangaramma succeeded, and during her life time, she had gifted the same to appellant No.1 under Ex. B5, the fact remains, both the Courts below have concurrently recorded finding to the effect that if really there was oral partition, as contended by the appellants, the question of their claiming partition of the same through Ex.X1-notice, which is admittedly issued on behalf of appellant No.2 does not arise.
The appellants, except pleading oral partition, did not examine any person to prove the same, and that even though they examined D.Ws. 2 to 5, they are not elders and that they were not present at the time the alleged oral partition took place, and that the appellants examined them only to show that they are in possession of the
property in an extent of Ac.2.04 cents. Even though the appellants placed evidence to show that they are in possession of the property, the Courts below came to the conclusion that since it is the specific case of the respondents that the appellants had trespassed into the suit schedule property during the pendency of the suit, any amount of evidence produced by the appellants to show that they are in possession of the property, is of no relevance, and more so when the appellants failed to prove that oral partition took place, in which the suit schedule property fell to the share of Gurappa.
The Courts below further came to the conclusion that patta was granted in favour of father of respondent No.1 in respect of ‘A’ schedule property. Though the appellants marked Ex.B4-certified copy of Diaglot Register, to support their case, the fact remains, P.W.5, who is Junior Assistant in the Collector’s office, clarified that Ex.B4 is not tallying with Ex.X3, which is the original of Ex.B4. When the original of Ex.B4 available on record, the Courts below failed to give any credence to Ex.B4, and upon scrutiny of the record, held that the father of respondent No.1 was the owner of the plaint-A schedule property.
Even though the appellants contended that the dead body of Bangaramma was buried in their land, which is covered by Ex.B5, as noticed by the Advocate Commissioner in his report, the fact remains, the appellants neither examined the Advocate Commissioner nor marked his report. On the other hand, D.W.1 has himself admitted in his cross-examination that the tomb of Bangaramma is not in existence in the suit land. The Courts below further came to the conclusion that as the appellants had some land to the west of plaint ‘B’ schedule property, the tomb must be in existence in that land, particularly when it is the case of the respondents that dead body of Bangaramma was
buried in six cents of land, which is on the west side of the plaint ‘B’ schedule property. The Courts below further concurrently found that the appellants, having not traced the source of title of Bangaramma to the property, cannot claim any rights in the property covered by the gift.
The findings recorded by the Courts below in the judgments under appeal being concurrent and based on proper appreciation of the evidence on record, I see no reason whatsoever to interfere either with the same. This apart, there is no question of law, much less substantial question of law involved in the second appeal.
There is no merit in the second appeal and the same is accordingly dismissed. No costs.
_____________ N.V. RAMANA, J.
9th December, 2011 IBL
2 issues framed by the court
Whether the finding of no oral partition denying recovery of possession requires interference.
Whether the evidence regarding the tomb of Bangaramma proves title to the suit property.
Appellants
Respondents
N.V. RAMANA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
