SA/1037/2013 of Kommagani Ilaiah Vs Kommagani Bikshapathi on 31 December 2013

JUDGMENT:

This Second Appeal is filed challenging the judgmentand decree dt.03-06-2013 in A.S.No.12 of 2010 of theSenior Civil Judge at Bhongir (for short “the lower appellateCourt”), reversing the judgment and decree dt.04-06-2010of the Principal Junior Judge, Bhongir in O.S.No.283 of2003 (for short “the trial Court”).

2. The appellants are defendants in the above suit.

The suit was filed by 1[st] respondent/plaintiff for partition ofthe plaint schedule properties admeasuring Ac.6-02 gts. (inSy.Nos. 508/A1, 508/A2, 508/A3, 508/A4, 508/A5,743/A1,743/A2 and 747/A2 of Chada village, M.Athmakur Mandalof Nalgonda district) into three equal shares and for allotment of one such share to him, for the relief ofdeclaration that he is the owner to the extent of 1/3[rd] shareout of Ac.2-06 gts. in Sy.No.508/A of the same village.

3. The plaint schedule properties belong to one lateRajamallu. The plaintiff claims to be the son of Rajamalluthrough his first wife Pedda Narasamma. Defendant Nos.1and 2 are admittedly sons of Rajamallu through ChinnaNarasamma, his second wife.

4. The plaintiff alleged that the extent of Ac.6-02 gts.mentioned in the plaint schedule belongs to Rajamallu; thathe was also a pattedar of an extent of Ac.2-06 gts. inSy.No.508/A ; although the property was in the name ofone Kancharla Mallaiah, father of defendant Nos.3 to 5nominally, Rajamallu had acquired title to this property alsoby adverse possession; Rajamallu had died about 10 yearsprior to filing of the suit; on his death, plaintiff and defendantNos.1 and 2 succeeded to the plaint schedule properties;that taking advantage of the absence of plaintiff in thevillage, defendants Nos.1 and 2 got mutated their name inrespect of the suit lands except Ac.2-06 gts. in Sy.No.508/Aand started enjoying the lands exclusively; and when hedemanded for partition, they did not agree. So he had to filethe suit.

5. The defendant Nos.1 and 2 filed written statementdenying the plaint averments. They contended that plaintiff is a stranger to the family and he never resided either withRajamallu or defendant Nos.1 and 2. They also contendedthat plaintiff was residing with one Bodige Somaiah andVeeramma for more than 60 years by enjoying theirproperties; that Rajamallu died about 18 years prior to filingof the suit and only defendant Nos.1 and 2 are his legalheirs; that plaintiff never objected when mutation of theplaint schedule property was made in the names ofdefendant Nos.1 and 2 or when they were issued pattedarpass books and title deed; and that they have alsoperfected title to the plaint schedule property by adversepossession. They contended that the suit is barred bylimitation and the boundaries of the properties mentioned inthe plaint schedule are false and incorrect.

6. Defendant Nos.3 to 5 adopted the writtenstatement of defendant Nos.1 and 2 by filing a memo.

7. The Court below framed the following issues:

“1. Whether the plaintiff is entitled for preliminary decreeof partition as prayed for?

2. Whether the plaintiff is entitled for declaration as ownerof 1/3[rd]

share out of Ac.2-06 gts. in Sy.No.508/A as prayed for?

3. Whether the boundaries of the suit schedule propertiesare incorrect?

4. Whether the suit is barred by limitation?

5. Whether the defendants perfected their right over thesuit schedule property by way of adverse possession?suit schedule property by way of adverse possession?

6. To what relief?”

7. The plaintiff examined P.Ws.1 and 2 and markedExs.A-1 to A-15. The defendants examined D.Ws.1 to 3, but did notmark any documents.

8. By judgment and decree dt.04-06-2010, the trialCourt dismissed the suit with costs. The trial Court heldthat plaintiff failed to prove that he is the son of lateRajamallu or that he resided with the family of Rajamalluand cultivated the plaint schedule property jointly andtherefore, he is not entitled to relief of partition. It held thatduring the life time of Rajamallu itself the plaint scheduleproperties were partitioned between defendant Nos.1 and 2and there is no explanation by plaintiff why he kept quiet for10 years, even after noticing the mutation of the names of1[st] defendant and Pedda Swamy in respect of the plaintschedule properties in the Revenue Records withoutdemanding for partition. It also referred to the fact that ahouse property of Rajamallu was not included in the suitand so the suit is bad for non-joinder of properties ofRajamallu. It held that the plaintiff, if he is the son ofRajamallu, would have performed the last rites of Rajamalluand the fact that he did perform the last rites would showthat he is not the son of Rajamallu. It also held that plaintiff did not examine any villagers to prove his relationship withdefendant Nos.1 and 2, that plaintiff had been residing withhis family Bodige Somaiah and Veeramma and it was the1[st] defendant, who performed the last rites of Rajamallu. Although the plaintiff relied on Exs.A-13 to A-15 voters listand also Exs.A-6 and A-8 to A-12 showing the name of hisfather as Rajamallu, it held that the surname of Rajamalluwas not shown therein. It also held that the extent of Ac.2-06 gts. in Sy.No.508/A is self-acquired property ofRajamallu and plaintiff had no right to seek partition of theplaint schedule property which had been settled betweendefendant Nos.1 and 2 during the lifetime of Rajamalluitself. It also held that the patta in respect of an extent ofAc.2-06 gts. in Sy.No.508/A stands in the name ofdefendant Nos.3 to 5, that plaintiff did not file any documentto show that late Rajamallu was in possession of the aboveproperty for a period of 12 years and therefore, he is notentitled to the relief of declaration of title in respect of 1/3[rd]share in this land. It held that plaintiff failed to establish thecorrectness of boundaries of the plaint schedule lands andthat the relief of declaration of title sought in respect of Ac.2-06 gts. in Sy.No.508/A by the plaintiff, is barred bylimitation. It also held that defendant Nos.1 and 2 failed toprove that they perfected their title over the plaint scheduleproperty by way of adverse possession.

9. Challenging this judgment and decree, the plaintiff filed A.S.No.12 of 2010 before the Senior Civil Judge,Bhongir. By judgment and decree dt.03-06-2013, the saidappeal was allowed.

10. The lower appellate Court held that Exs.A-6,A-10 to A-15 prove that Rajamallu is the father of plaintiff;that defendants did not give any suggestion that thesedocuments are fabricated for the purpose of the case byplaintiff and did not dispute those documents; that they hadalso not taken a specific plea that their father Rajamallu isdifferent from the father of plaintiff in their pleadings nor didthey deny that they are not the sons of Rajamallu throughhis second wife. As regards the extent of Ac.2-06 cents inSy.No.508/A, it held that although the defendant Nos.1 and2 contended that they acquired it, they did not place anyevidence in support of the said plea; that Ex.A-2 certifiedcopy of pahani for the year 1986-87 shows that Rajamalluis one of the pattedars along with Kancharla Mallaiah overan extent of Ac.04-12 gts.; therefore, Rajamallu is owner ofan extent of Ac.2-06 gts. in Sy.No.508/A; and it was not inthe exclusive possession of 1[st] defendant or 2[nd] defendant; so it has to be treated asjoint family property of plaintiff and defendant Nos.1 and 2;and therefore, plaintiff is entitled to 1/3[rd] share therein. Itheld that the property cannot be said to be not joint familyproperty merely because the plaintiff was having aseparate residence. It noticed that defendant Nos.1 and 2

did not set up any plea of non-inclusion of house propertybut only made a suggestion to plaintiff about the existenceof such a house and its non-inclusion and in the absenceof a pleading by defendants that a house property is alsojoint family property, the suggestion by defendants or itsresponse thereto by plaintiff cannot be taken intoconsideration. It also held that defendants failed to file anydocumentary proof in support of the plea of oral partitionnor did they mention the date, month and year in which it issaid to have taken place.

11. Challenging the same, this appeal is filed.

12. The learned counsel for appellants contendedthat the Court below erred in holding that plaintiff is the sonof Rajamallu through Pedda Narasamma and that the saidfinding has been given on the basis of irrelevant evidence. The learned counsel for the appellant relied uponGurbaksh Singh Vs. Nikka Singh[[1]]and J.B.Sharma Vs.

.[[2]]State of Madhya Pradesh and Anrin support of thisplea. He further contended that the plaintiff did not proveExs.A-6 and A-10 to A-15 on the basis of which the trialCourt gave a finding that he is the son of Rajamallu as nowitness was examined to prove these documents. Hefurther contended that even if there is no challenge to thesedocuments, the burden is on the plaintiff to prove them. Herelied upon Sait Tarajee Khimchand and Ors. Vs.

.[[3]]Yelamarti Satyam @ Satteyya and Orsin this regard. He also contended that there is no evidence led by plaintiffas contemplated under Section 50 of the Indian EvidenceAct, 1872 (for short “the Act”) for coming to a conclusionabout the relationship of Rajamallu with plaintiff and hisalleged mother Pedda Narasamma. He contended that thelower Appellate Court failed to consider the issue ofadverse possession as the plaintiff had to plead and provefrom which day his possession has become adverse todefendant Nos.3 to 5. He also relied upon Karnataka Board of Wakf Vs. Government of India and Ors.[[4]]inthis regard. He also contended that the evidence on recordwould reveal that a portion of the property had been sold tothird parties, that the purchasers are in possession of theproperty and they should have been made parties to thesuit. On account of their non-joinder, the suit is liable to bedismissed.

13. I have noted the submissions of the learnedcounsel for the appellants.

14. In the present case, the first issue to beconsidered is whether plaintiff is the son of Rajamallu. Thetrial Court held that plaintiff is not the son of Rajamallu butthe lower appellate Court, on appreciation of documentaryevidence on record, took a contrary view. The lowerappellate Court relied upon Exs.A-6 and A-10 to A-15 to hold that plaintiff is the son of Rajamallu. It held that thedefendants had not suggested that these documents arefabricated for the purpose of the case; that they have neverdisputed these documents; that Ex.A-6 is a rice distributioncard issued by State which shows Rajamallu as the fatherof Kommagani Bikshapathi, the plaintiff; Ex.A-10 is aresidential certificate issued by the Village RevenueOfficer, Chada village; Ex.A-11 is the Caste certificate; Ex.A-12 is a pension grantcard issued by the M.P.D.O. and Exs.A-13 to A-15 are truecopies of voters list for the years 1995, 2006 and 2007’and all of them show that father of the plaintiff is Rajamallu.I completely agree with this view of the lower appellatecourt.

15. I am unable to accept the contention of thelearned counsel for appellants that plaintiff should provethat he is the son of late Rajamallu through his first wifePedda Narasamma. In all official documents, the mother’sname is not mentioned normally and only the father’s nameis mentioned. Therefore, there is nothing wrong in thelower appellate Court in relying on Exs.A-6 and A-10 to A-15 to hold that plaintiff is the son of Rajamallu, particularlywhen defendants did not plead that their father Rajamallu isdifferent from the father of plaintiff or deny that they are bornto Rajamallu through his second wife. Therefore, I do notagree with the learned counsel for appellants that the judgment of the lower appellate Court is based on noevidence or based on irrelevant evidence.

16. I also do not agree with the contention of thelearned counsel for the appellants that since noneconnected with Exs.A-6 and A-10 to A-15 were examined,they could not have been relied upon. Exs.A-6 and A-10 toA-12 have been issued by the officials of Government whileExs.A-1 3 to A-15 are true copies of voters list of the villageand in all these documents the name of plaintiff’s father isshown as Rajamallu. When the defendants have neverdisputed the authenticity of these documents in anymanner, it was not necessary for plaintiff to examine theauthors of these documents. It is not as if they are privatedocuments which require to be proved by examining theauthor of the documents. In Sait Tarajee Khimchand (3supra) relied upon by the learned counsel for appellants,the documents sought to be relied upon was a day bookand a ledger maintained in a partnership firm and sincethese were private documents, the Court held that unlessthey are proved by examining the author of the entriestherein, they could not have been accepted in evidence. The said judgment has no application to the present casesince Exs.A-6 and A-10 to A-12 are issued by Officials ofthe State Government and even Exs.A-13 to A-15 are truecopies of voters list of the village, and as they are notprivate documents, they were rightly relied upon to prove the fact that plaintiff is the son of Rajamallu.

17. Although the learned counsel for theappellants contended that the lower appellate Court hadheld that the plaintiff was born to Rajamallu and PeddaLakshmamma, there is no such finding in the judgmentpassed by the lower appellate Court.

18. The reliance by the learned counsel for theappellants on Section 50 of the Evidence Act,1872 is alsomisplaced. Section 50 of the Act states :

“50. Opinion or relationship, when relevant :-- When the Court has to form an opinion as tothe relationship of one person to another, theopinion, expressed by conduct, as to theexistence of such relationship, or any person who,as a member of the family or otherwise, hasspecial means of knowledge on the subject, is arelevant fact :

Provided that such opinion shall not besufficient to prove a marriage in proceedingsunder the Indian Divorce Act, 1869 (4 of 1869) orin prosecutions under Sections 494, 495, 497 or498 of the Indian Penal Code (45 of 1860).”

19. Admittedly, the plaintiff was living away fromthe family of Rajamallu and only defendant Nos.1 and 2were living with Rajamallu. So, it is difficult for plaintiff toprocure evidence by examining the members of family ofRajamallu to prove his relationship with Rajamallu, but itwas open to the plaintiff to establish his relationship withRajamallu through other means such as Exs.A-6 and A-10to A-15, which he did. In this view of the matter, I hold that the plaintiff need prove his relationship with Late Rajamalluonly in the manner provided in Section 50.

20. Admittedly, plaintiff had examined P.W.2,whose father Rama Swamy is a brother of Rajamallu, andhe categorically stated that plaintiff is the son of Rajamallu. Merely because there is a dispute between 1[st] defendantand P.W.2, his evidence cannot be ignored. There wasalso no suggestion given to P.W.2 that his father was notthe brother of Rajamallu. Therefore, the plaintiff can be saidto have proved that he is the son of Rajamallu throughP.W.2, even by the method in Section 50.

21. Coming to the contention of learned counselfor the appellants that the lower appellate Court did notconsider the plea of adverse possession with regard to1/3[rd] share in Sy.No.508/A of an extent of Ac.2-06 gts., ithas to be borne in mind that the trial Court had gone intothe issue in view of its finding that plaintiff was not the sonof Rajamallu and therefore, it held that the relief ofdeclaration in respect of this item is barred by limitation. But once the lower appellate Court had reversed thisfinding and held, on appreciation of evidence, that plaintiffis also a son of Rajamallu, he becomes a co-sharer alongwith defendant Nos.1 and 2 in the property of Rajamallu. Insuch an event, there has to be a plea of ouster raised bydefendant Nos.1 and 2. There is no specific plea of ouster by defendant Nos.1 and 2. Once such a plea is not raisedor established, the title of plaintiff must be held to havebeen accepted.

22. In Binapani Paul Vs. Pratima Ghosh and others[[5]], the Supreme Court held:

“39. Interestingly, Amal pleaded ouster. If ouster is tobe pleaded, the title has to be acknowledged. Oncesuch a plea is taken, irrespective of the fact that as towhether any other plea is raised or not, conduct of theparties would be material.If, therefore, plea of ouster is-not established, a fortiori the title of other cosharersmust be held to have been accepted.

… ….

41. Amal, therefore, could not have turned around andchallenged the title of the appellant and otherrespondents. (See Syed Abdul Khader v. Rami Reddy((1979) 2 SCC 601).” (emphasis supplied)

23. Interestingly, the plea of learned counsel forthe appellants is that the plaintiff himself should plead andprove that his possession has become adverse todefendant Nos.3 to 5 and not against defendant Nos.1 and2. I may point out that the plaintiff’s specific plea was thatRajamallu had perfected title in respect of Ac.2-06 cents ofland in Sy.No.508/A even though the pattedar in respect ofthis land is Kancharla Mallaiah, the father of defendantNos.3 to 5. Therefore, the plaintiff had not pleaded that heacquired title by adverse possession against defendantNos.3 to 5 but that his father Rajamallu had acquired title asagainst defendant Nos.3 to 5’s father Kancharla Mallaiah.

When the lower appellate Court had held that this extent ofland is the property of Rajamallu and the said finding hasnot been challenged by defendant Nos.3 to 5, it is not opento appellants to plead the cause of defendant Nos.3 to 5.

24. As regards the plea of non-joinder ofproperties raised by the learned counsel for appellants,there is no such plea in the counter affidavit filed bydefendant Nos.1 and 2. Such a contention had not beenraised by defendants either in the trial Court or in the lowerappellate Court at any stage. It is not open to theappellants to raise this contention without pleading andwithout evidence in support of this plea for the first time inthe Second Appeal.

25. I do not accept the contention of the learnedcounsel for appellants that the findings of the lowerappellate Court are not based on evidence. I am satisfiedthat the lower appellate Court had given valid reasons forcoming to the conclusion that plaintiff is the son ofRajamallu; that on the death of Rajamallu, he along withdefendant Nos.1 and 2 became the co-sharers of theproperties of Rajamallu; that even the extent of Ac.2-06 gts.in Sy.No.508/A belongs to Rajamallu and the plaintiff wouldbe entitled to 1/3[rd] share therein. There is no substantialquestion of law arising for consideration in the SecondAppeal.

26. I therefore do not find any merit in the SecondAppeal and the same is accordingly dismissed at the stageof admission. No costs.

27. Miscellaneous applications pending if any in this Second Appeal shall stand closed.

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JUSTICE M.S. RAMACHANDRA RAO

Date: 31-12-2013

LR COPY TO BE MARKED : YES/NOB/o.vsv/*

[1]AIR 1963 SC 1917

[2]AIR 1988 SC 703

[3](1972) 4 SCC 562

[4](2004) 10 SCC 779

[5](2007) 6 SCC 100