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SATYANARAYANA MURTHY APPEAL SUIT No. 1841 OF 1993 JUDGMENT: The unsuccessful plaintiffs in Original Suit No.178 of 1984 on the file of the Court of Subordinate Judge, Anakapalle, Visakhapatnam district (for short, the 'trial Court') preferred this Appeal challenging the decree and judgment dated 17.09.1986, where under and whereby the suit filed by the plaintiffs, for partition of the plaint schedule property into 4 equal shares and for allotment of one such equal share to them, after converting joint possession into separate possession, and put them into separate possession and for a declaration that sale agreement dated 15.08.1966 set-up by the defendants 1 to 3 is false, fabricated document and not valid thereby not binding on the plaintiffs, was dismissed. 2. For convenience of reference, the ranks given to the parties in O.S. No.178 of 1984 before the trial Court will be adopted throughout this judgment. 3. The plaintiffs filed the suit for partition of the plaint schedule property into 4 equal shares and for allotment of one such equal share to them and for declaration that the sale agreement dated 15.08.1966 set-up by defendants 1 to 3 is false alleging that the plaintiffs 1 and 2 are the children of late Pydayya and Pydamma, 3rd plaintiff herein. Pillala Ramaiah was the original owner of the schedule property, who died leaving behind his children Appalaswamy (died) and Venkataswamy (D-1), Pedda Mallunaidu and Pydayya. Pydayya died leaving behind his wife Pydamma, 3rd plaintiff, Apparao and Appalaraju, plaintiffs 1 and 2 herein to succeed his estate; whereas Pedda Mallunaidu died leaving behind his children Peddodu (D-7) and Chinnodu (D-8) respectively; whereas, 1st defendant was blessed with Sriramulu, Appalanaidu and Appalaswamy, defendants 4 to 6 respectively; whereas, Appalaswamy died leaving behind his son Appalanaidu (D-3), who all constituted as members of the joint family own and possessed the schedule property jointly and they were sharing the produce from the schedule property, after death of Pillala Ramaiah. While so, 3rd plaintiff borrowed Rs.1,000/- from defendants 1 to 3, about 10 years ago, on condition to appropriate the produce in lieu of interest till the debt is discharged. The plaintiffs have been paying land revenue on their undivided share. Subsequently, the plaintiffs got issued a notice dated 16.05.1980, marked as Ex.A-1, to the defendants 1 to 3 demanding them to accept Rs.1,000/- and permit them to enjoy their share of produce but the defendants got issued a contentious reply setting up an agreement of sale dated 15.08.1966, marked as Ex.B-1, alleging that the 1st plaintiff executed the agreement of sale; by which date, 1st plaintiff was minor and not competent to execute the agreement of sale and that the agreement is forged and fabricated one. Even otherwise, it would not confer any right in favour of defendants 1 to 3 and do not bind the plaintiffs as there was no partition as alleged in the reply. However, the defendants denied the right of the plaintiffs in the property covered by the agreement of sale dated 15.08.1966 and also prior partition of the property and as such denied the right of the plaintiffs both in the property covered by the agreement of sale and in the schedule property. Hence, the suit. 4. Defendants 1 to 3 filed a common written statement admitting the relationship between the plaintiffs and defendants while denying their constitution of coparcenary Hindu undivided joint family, specifically contending that there was division of the property among 4 branches, about 4 years prior to death of the 3rd plaintiff’s husband, and thereafter there was no joint family in existence, by the date of filing the suit. It is further contended that the 1st plaintiff, as a member of joint family, executed an agreement of sale dated 15.08.1966 in favour of defendants 1 to 3 agreeing to sell Ac.1.06 cents of wet land for Rs.1,000/- and since the date of purchase, defendants 1 to 3 were in possession and enjoyment of the property by paying land revenue. The defendants denied the alleged borrowing of Rs.1,000/- by the 3rd plaintiff from them on condition to appropriate the produce from the property covered by the agreement towards interest. In the year 1967, the 3rd plaintiff asked the Village Officer to collect tax from the defendants 1 to 3 and about 3 years back, the plaintiffs sought mediation of Pillala Ammathalli, Village Headman and others for securing possession of the suit land but they were not successful. The 3rd plaintiff sold part of her husband’s share of land to one Doddi Ramappalanaidu of Bangarammapalem in the year 1970 and another part to Nakkella Bangarayya of Rayapuram Agraharam in the year 1975 and another part to 3rd defendant in the year 1970. Though the defendants paid total consideration of the land covered by the agreement of sale, could not obtain regular registered sale deed due to postponement by the 1st plaintiff on one pretext or the other, more particularly, due to his non availability in the village. The defendants specifically contended that since the date of agreement of sale, they were continuing in possession and enjoyment of the property and, if for any reason, the agreement is disbelieved, they perfected their title by adverse possession. Due to increase of land value in and around the Steel Plant at Visakhapatnam, the present suit is filed by the plaintiffs and, hence, they are not entitled to claim either the relief of partition or declaration that the agreement of sale dated 15.08.1966 is forged, fabricated and not valid and prayed for dismissal of the suit. 5. Defendants 4 to 8 remained ex parte. 6. Basing on the above pleadings, the trial Court framed the following issues: 1) Whether the prior partition pleaded by defendants 1 to 3 is true? 2) Whether the plaintiffs are entitled for the declaration to set-aside the sale agreement dated 15.08.1966? 3) Whether the defendants 1 to 3 prescribed their title by adverse possession? 4) Whether the plaintiffs are entitled to the partition, as prayed for? 5) To what relief? 7. During course of trial, on behalf of the plaintiffs, PWs.1 and 2 were examined and marked Exs.A-1 to A-5. On behalf of defendants, DWs.1 to 5 were examined and marked Exs.B-1 to B-8. 8. Upon hearing argument of both the counsel, considering oral and documentary evidence, the trial Court dismissed the Suit holding that the previous partition pleaded by the defendants is true and that the agreement of sale dated 15.08.1966 was executed by the 1st plaintiff in favour of the defendants 1 to 3 and thereby the plaintiffs are disentitled to claim any relief. 9. Being aggrieved, the unsuccessful plaintiffs therein preferred the present Appeal raising several contentions. The main contentions of the plaintiffs-appellants are: a) The observation of the trial Court that the defendants perfected their title by adverse possession is not based on any material and the same is liable to be set-aside as it is erroneous; b) Ex.B-1 was created by the defendants playing fraud against the plaintiffs and, even otherwise, the question of adverse possession does not arise; and c) The trial Court failed to consider the pattadar passbooks issued in favour of the plaintiffs while considering the plea of the defendants and committed an error in dismissing the suit and, finally, prayed to allow the Appeal setting-aside the decree and judgment of the trial Court. 10. During pendency of the Appeal, defendants-respondents 1 to 3 died on different dates and the plaintiffs-appellants filed petitions to recognize the defendants-respondents 4 to 6 as legal heirs of the 1st defendant-respondent and defendants-respondents 7 and 8 as legal heirs of 2nd defendant-respondent and to implead the 9th respondent as legal heir of 3rd defendant-respondent in the Appeal and to set-aside the abatement and condone the delay of 3,481 days and delay of 402 days in representing the other petitions. This Court ordered notices in delay condonation petition to bring the proposed legal heir of 3rd defendant-respondent alone on record and also to his counsel but the plaintiffs-appellants did not serve notice on the proposed legal heir of 3rd defendant-respondent i.e., 9th respondent as ordered by this Court, consequently this Court passed order rejecting A.S.M.P. No.2943 and 2944 of 2013 and, subsequently, since no proof of service is filed before this Court, the plaintiffs-appellants also did not take any steps to get the petition restored, dismissed both the A.S.M.P. Nos.2943 and 2944 of 2013. Therefore, the legal heirs of the defendants 1 and 2, though on record, are not recognized as their legal heirs and the legal heir of 3rd respondent was not brought on record till date. 11. During course of argument, Sri K. Purushotham, learned counsel for the plaintiffs-appellants, would contend that the finding of the trial Court regarding execution of Ex.B-1, agreement of sale is not based on any material and the finding with regard to previous partition pleaded by the defendants is not supported by any logical and legal reasoning. Unless there is any substantive piece of evidence to establish the previous partition, the same cannot be believed and when once the previous partition pleaded by the defendants is disbelieved, the 1st plaintiff is incompetent to execute the agreement of sale agreeing to convey title in an extent of Ac.1.06 cents without the consent of the other members or the coparceners of the joint family; therefore, the document marked as Ex.B-1 is invalid and not binding on the plaintiffs. Consequently, the finding of the trial Court regarding previous partition and genuineness of Ex.B-1 is erroneous. It is further contended that the finding of the trial Court regarding perfection of title by adverse possession is without any legal basis since the defendants 1 to 3 never claimed hostile title and continued thereafter for more than the statutory period of 12 years. In the absence of proof of claiming hostile title against the plaintiffs in the property covered by Ex.B-1 and their continuation over a statutory period of 12 years thereafter, the finding of the trial Court is unsustainable under law; that apart, when the defendants 1 to 3 claimed possession under the agreement of sale, they are not competent to set-up the plea of adverse possession since their possession is permissive. Therefore, the findings of the trial Court are erroneous and prayed to allow the Appeal setting-aside the decree and judgment of the trial Court. 12. Though notices in the Appeal were served, none appeared for the defendants-respondents and no argument was advanced on their behalf. 13. Considering the contentions of learned counsel for the plaintiffs-appellants and the material available on record, the points that arise for consideration