This appeal suit challenged a decree dismissing a partition claim. The High Court held that evidence and admissions established a prior partition of the property among the brothers, rendering the current claim for partition moot.
Appeal suit dismissed with costs to be paid by the appellants to the respondents.
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.
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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
FRIDAY .THE TWENry FIRST DAY OF APRIL TWO THOUSAND AND IWENTY THREE
PRESENT
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
APPEAL SUIT NO: 383 OF 2005
Appeal Under Section 96 of C.P.C against the judgment & decree passed in O.S No. 63 of 2000, Dated 13 04.2005 on the file of the IAdditional District Judge, R R.Distnct at L B.Nagar.
Between:
All are R/o H No 38, Yadulabad, Ghatkeshar mandal, R.R.Distrlct. ...APPELLANTS/PLAINTIFFS
AND
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.,.RESPONDENTS/DEFENDANTS
A.S.M.P- NO : 12O3 OF 2O05
Petitron under Section 151 CPCpraying that in the circumstancesstated in the affidavit filed in support of thepetition,the HighCourt may be pleased to grant an order injunction restrainingthe respondentsfrom alienating the plaint schedule lands in S Nos,586(1-30),778(1-10)698 (2-24),699(3-01),905(8-12),906(11-13) total an extent of Ac 28j0guntas at YedulabadVillage,GhatkesarMandal, R.R,District bounded by:East Road, West: Nala, North: Neighboursland:South: Neighbours land.
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IA NO: 10F 2018
Petition underSection 151 CPC prayingthatin the circumstances statedin the affidavitfited in support of the petrtion' the High Court may be pleased to expeditethe hearingof the A S No 383/2005 by fixing an early date in the interest ofjustice
IA NO: 10F 2019
Petitionunder Section 151 CPCpraying that in the circumstances statedin the affidavitfiled in support of the petition, the High Court may be pleased to condonethe delayof 139 days from 03-03-2019to 19-07-2019 ' that occurred in filinganapplicationunderorder4lRulelTtosetasidetheorderdt.3,l-01-2019in dismissingthe Appealfor NON PROSECUTION'
IA NO: 20F 2019
Petition underSection 151 CPC praying that in the circumstances statedin the affidavitfiled i0 support of the petition, the High Court may be pleasedto set asidetheorderdt,3l-01-20lgindismissingtheAppealforNoNPRoSECUT|oN in AS no 383of 2005pending on the file of this honorablecourt and pas IA NO: 20 202',1
Petition underSectron151 CPCpraying that in the circumstances statedin the affidavitfired in support of the petition, the High courtmay be preasedto direct the respondentsnot to alienateor alter the suit scheduledproperty pending disposalof this appeal and orders may be passed accordinglyin the interestof justice
IA NO: 40F 2021
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...PROPOSED RESPONDENTS
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to bring the LRs of Respondent No.l Late J. Vittal Rao as Respondent No. 7 & 8 by impleading them as party to this proceedings and orders may be passed accordingly in the interest of justice.
Counsel for the Appellants : SRl. PASHAM KRISHNA REDDY
Counsel forthe Rgspondents: SRI D.RAMAKRISHNA
The Court made the following: JUDGMENT
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HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
A.S.NO.383 of 2OO5
JUDGMENTI
This appeal suit has been filed by the unsuccessfulplaintiffs in OS.No.63 of 2000 on the file of I Addl. District Judge, Ranga Reddy under Section 96 of C.P.C. challenging the Judgment and Decree dated 13-04-2005. For convenience sake, theparties will be referred to as they are shown in theplaint that was filed before the trial Court.
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death oF said yadagiri, ptaintiff No.1, D1 and D2 continued in the .loint famity tifl 1981. They did not divide their properties by Fixing metes and bounds. However in 1 98 1, p,aintiff No.1, D1 and D2 with a mutual understanding agreed to cultiva te the properties as per the understanding till the partition t akes place, but they have divided the house into three portions a nd started enjoying their respective shares in the house.
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they partitionedthe property among the brothers' But the plaintiffs have claimed thatthe properties remained in the joint possession of all thebrothersbut they are cultivating the land as per their understanding.
55RN,] A S-No j83 of 2005
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schedule property sought for partition and allotment of their respective share.
SSRN,J A.S.No.383 of 2005
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Sy.No.905 and Ac.01-30 gts wet land from Sy.No.586.The said partition was affected basing on the value of the property.
B. The defendants have claimed that all thethree brothers were allotted respective shares on thebasis ofthe vaiue of land and nature of theproperty. The firstplaintiff being police patel of the village got the lands that fell to his share mutatedin the revenue records. All the brothers have beenpaying taxes for their respective share since 1979 and they havebeenenjoying their respective properties without any interruption.The defendants could not cultivate the dry landsince therewas no water source. The land that wasgiven toplaintiFf No.lwas a fertile land. Late Yadagiri was cultivating Ac.03-01gts in Sy.No.624 of Yedulabad Village. it was divided into threeparts and each part was allotted toplaintiff No.1, D1 and D2.The first plaintiff got the said one acre of land mutated in favour of his wife Kamalamma. The defendants No.1 and 2got their names mutated in respect of the remaining two parts in the concerned revenue records. Plaintiff No.1 and his wife sold their share to thirdparties under regular registered sale deed. The defendants also sold their respecting share in Sy.No.624 for which the first plaintiff did not raise any objection.
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Theplaintiffs have claimed thatthe Judgmentand DecreeoF the trial Court is contrary tolaw, weight of evidenceand probabilities of the case. The trial Courtought not to have dismissed the suitas theplaintiffsare entitled to have a share in the plaint scheduleproperty.The trial Court committedan errorin believing theversion ofthe defendantswith regard to the alleged prior partition without there being anyevidence to that effect' There is no documentary evidenceto establish the allegedpartition between the brothers.The Court below committedan error in accepting the contentionof defendantswith regardto the partition though the brothershave been cultivatingthe propertyby mutual understanding till thepartition takes place. The trial Courtfailed to see that therewas burdenon the defendantsto prove the prioi partition but they could not adduce any evidencein support of the said contention. Theplaintiffs have further claimedthat mere mutation of the names in therevenue records does not confer any title over theplaint schedule property' Therefore,even if there was such mutation of the Iandin favour of the first plaintiff or his brother, it cannot be believedthat there was a prior partitionbut the trial Court committed an error in accepting the fact. Thereby, the appellants sought for setting aside the Judgment and Decree
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and for a preliminary decree to allot 1/3.d share in the entire joint family property in their favour.
appeal are :
SSRN,] A.S.No.383 of 2005
9
support of the alleged partition and allotment of shares. Even though, there is evidence on record to show thatplaintiff No.1 was enjoying a definite property, it was only out of understanding between the brothers. There was no written or oralpartition among the brothers. Therefore, the trial Court ought tohave granted a Decree For partition in favour of the brothers. But the Court below committed an erTor by dismissing the suit byrelying on the evidence of DW.1 and DW.2 which is not supported by any cogent evidence. The learned counsel for the appellantsfurther submitted that as per the admissions of defendants, thefirst plaintiff was cultivating an extent of Ac.05-25 gts in Sy.Nos.698 and 699 whereas, D1 and D2 were cultivating more than Ac.10-00 gts of definite property from other survey numbers. Therefore, the' same cannot be taken as validpartition among the brothers. He has also argued that DW.1 deposed before the Court that there was a partition deed executed in the presence of village elders but no oral evidence placed before the Court in support of the contention. The evidence of DW.1 that such a document was kept in the custody of plaintiff cannot be accepted because when once a stand was taken by the defendants to the effect that there was partition which was reduced into writing, the defendants are under the obrigation to substantiate the contention, but absorutery there
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was no oral or documentary evidence to accept the alleged prior partition, thereby, prayed for setting aside the Judgment of the trial Court. In support of the claim, the appellants have placed reliance on a Judgment between ,Ganesan vs. Asupathy,l. 15. On the other hand, the learned counsel for the defendants (respondents) argued before the court that there is enough evidence before the Court to accept the contentions of defendants. The cross_examination of pW.1 is very clear, it was elicited From pW.1 about the separate possession and enjoyment of each brother over a definite extent of land. When once it is elicited from the witnesses about the separate possession and enjoyment of the respective shares, it is deemed that there was prior partition and allotment of respective shares among the brothers' The said partition was affected based on the varue of the property and nature of the land. Admittedly, the first plaintiff is in possession and enjoyment of agricultural wet lancl to an extent of more than 5 Acres, that itself indicates the partition of the property based on the nature of the land and value of the property' The praintiff No.1 who worked as porice pater courd not have obtained mutation of his properties, if there was no partition that itself sufficient to accept the contention of the defendants.
'MANU/rN/2g7s/2022
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SSRN,J A.S.No.383 of 2005
The learned counsel for the defendants has supported the Judgment of the triai Court and sought for dismissal of this suit. In support of the said contention, he has highlighted some of the important admissions elicited irom PW.1 in the cross-exa m ination.
POINTS :
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SSRN,I A S No.383 ol20Os
land that was given to his share did not choose to file the said passbook on the ground that it was in the Bank custody.
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55RN,] /.S.No.383 of 2005
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5SRN,J A.5-No.l83 of 2005
among the brothers right from 1979. In the light of the above referred admissions, it clearly shows that all the three brothers have been enjoying three different and definite extents of land having obtained Pattedar Passbooks and they have beenpaying land revenue tax to the concerned authorities. Even if the defendants are not able toproduce any documents, the circumstances elicited from the firstplaintiff would indicate and sfrengthen the case of defendants about the partition that was already aFFected. Theplaintiffs have filed Exs.A1 to A9 which may not prove the claim of plaintiffs that there was noprior partition.
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S5RN,J A S.No.383 of 20Os
'zooz 1t; aro sss " AIR 1979 Suprem e Court 879
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were ailotted definite extents of land, they were given pattedar Passbooks, they have been paying land revenue for the respective sha res rig ht f rom 1979 . The brothers have alienated some extents of their property given towards their share. The first plaintiff did not dispute his employment as a police patel, therefore, he cannot say he does not know the consequences or significance of the allotment of Pattedar passbooks and payment of land revenue. If really, there was no partition, there was no occasion for these brothers to get the names mutated in the revenue records and to pay the property tax for their respective properties. If there was no partition, there was no occasion for this plaintiff No.1 to get the name of his wife mutated in respect of Ac.01_00 gts of wet land and D1 and D2 were also got their names mutated in respect of the remaining Ac.01-00 gts each. As courd be seen from the admission ofpW.1, it is very clear that the brothers disposed their respective Ac.01-00 gts under a separate sale deeds. If there was no partition as claimed by the plaintiffs, all the three brothers could not have executed separate sale deeds and there was no occasion for them to execute three different sale deeds. The plaintiffs did not file the copy of sale deed executed by the wife of plaintiff No.1 for the said one acre of wet land. Therefore, ail these circumstances strengthen the case of defendants and the
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plaintiffs are not able to prove that all the properties shown in the plaint schedule are still in the joint possession of the parties and they are entitled to seek 1/3.d share.
Consequenfly, Miscellaneous applications if any, are
closed.
To, 1 The I Additional District Judge, R.R.District at L.B.Nagar.(With Records)
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HIGH COURT DATED:21 104t2023
JUDGMENT
AS.No.383 of 2005
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DISMISSING THE APPEAL SUIT WITH COSTS.
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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
FRIDAY THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND TWENTY THREE
PRESENT
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
APPEAL SUIT NO: 383 OF 2005
Between:
All are R/o H.No.38, Yadulabad, Ghatkeshar mandal, R.R.District
...APPELLANTS/PLAINTIFFS
AND
Appeal Under Section 96 of C.P.C against the judgment & decree of the I Addrtional Drstrrct Judge, R.R.District at L.B.Nagar passed in O S No 63 of 2000 Dated i3042005
CRDER Thrs appeal coming on for hearing and upon perusrng the grounds of appeal the JLrdgment and Decree of the Lower Court and the mateial papers rn the Surt and upon hearing the arguments of Sri Pasham Krishna Reddy, for the Apor-.ilarrts and of Srr D Ramakrrshna, Advocate for the Respondents
Thrs Courl doth Order and Decree as follows
NIE}TOR,,\DTINI OF COSI'S ,.S.\o.383 of 2005
-l'hat thc appcllants (lo pay costs to Responden ts hcrcin.
Rs. Ps.
5-00
Rs. 5-00
Sd/- K. SRINIVASA RAO JOINT REGISTRAR
,TRUE COPY//
:i.
sEcfloN d-rflceR
To
'1 The I Addrtronal District Judge R R Drstrict at L B Nagar
2 Trvo CD Copies
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HIGH COURT DATED:21 10412023
DECREE
AS.No.383 of 2005
DISMISSING TI-IE APPEAL SUIT WITH COSTS.
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3 issues framed by the court
Whether the plaintiffs were able to prove that there was no prior partition between the brothers?
Whether the trial court erred in accepting the defendants' contention regarding a prior partition of the joint family property?
Whether the appellants are entitled to seek a preliminary decree for partition of the suit schedule property?
Colour shows how this judgement treated each authority
Ganesan vs. AsupathyRelied on¶104
Ganesan vs. Asupathy
Latchapeta Ramalaxmi vs. Lacha peda Bannarsi aihDistinguished¶134
Latchapeta Ramalaxmi vs. Lacha peda Bannarsi aih
J.Srinivasa Rao and others vs. J. Vittal Rao and othersReferred¶134
J.Srinivasa Rao --- and otherlners vs' J'vittal Rao and others
1 provisions across 1 enactments
J. Srinivasa Rao and others
J. Vittal Rao and others
Sri Justice Sambasivarao Naidu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
