SA/1234/2012 of Golla Pullaiah Vs K.Prabhakar, on 31 December 2012

COMMON JUDGMENT:-

These two appeals arise out of a judgment in O.S.No.497 of2008 on the file of the Court of the Principal Junior Civil Judge,Kurnool.

2. The suit was filed for cancellation of a registered sale deeddated 21.08.2007 executed by the 1[st] defendant in favour of the 2[nd]defendant.

3. According to the case of the plaintiff, he is grandson of the 1[st]defendant and during his minority his maternal grandfather filed a suitO.S.No.34 of 1998 on the file of the Court of the Additional Senior CivilJudge, Kurnool, for partition of properties against his father and thesaid suit was decreed and a final decree was passed on 23.07.2001. The suit schedule properties have fallen to the share of the plaintiff andhe got possession of the property. The 2[nd] defendant claimed that hepurchased the property from the 1[st] defendant and obstructed theenjoyment. Consequently, the suit was filed.

4. The 1[st] defendant filed a written statement contending that theschedule property is a exclusive property having purchased under aregistered sale deed dated 01.05.1975 from Muthyappa and thealleged partition decree is a collusive one and the 1[st] defendant is nota party to that suit. The 1[st] defendant has got two sons and the othersharers were also not parties to the said suit. Therefore, the suit isliable to be dismissed. The 2[nd] defendant remained ex parte.

5. On the basis of the above pleadings, necessary issues have been framed for trial. On behalf of the plaintiff, PW.1 was examinedand marked Exs.A.1 to A.4. On behalf of the defendants, DW.1 wasexamined and Exs.B.1 to B.3 were marked. After considering theevidence on record, the trial Court has decreed the suit. Aggrieved bythe said judgment, the 1[st] defendant preferred the appeal A.S.No.22 of2011 and the 2[nd] defendant was added as respondent No.2 in theappeal. The I Additional District Judge, Kurnool, after considering thematerial evidence on record, dismissed the appeal. Aggrieved by thesaid judgment, the 1[st] defendant has preferred the Second AppealNo.937 of 2012, whereas the 2[nd] defendant has preferred the SecondAppeal No.1234 of 2012.

6. Both the appeals were admitted on the following commonsubstantial questions of law:

1) Whether the decree in O.S.No.34 of 1998 and the finaldecree in the said suit is valid and does not confer anytitle on the plaintiff for the reason that it is said to haveben obtained by fraud?decree in the said suit is valid and does not confer anytitle on the plaintiff for the reason that it is said to haveben obtained by fraud?

2) Whether the relief claimed by the plaintiff grnated bythe Court below is vitiated by non-appreciation of thematerial facts?the Court below is vitiated by non-appreciation of thematerial facts?

7. POINTS:

The contention of the learned counsel for the appellant is that theCourts below have not properly appreciated the facts and there is anapparent error of law and fact in arriving at the conclusion and thedocuments were not properly considered and therefore the judgmentssuffered from infirmity. He relied on a decision reported inP.Chandrasekharan and others Vs. S.Kanakarajan and others[[1]].

8. The substance of the contention of the appellant herein is thatthe suit schedule property was purchased by the 1[st] defendant in hisown name and he is the exclusive owner of the property and

consequently the family has no right and it cannot be a subject matterof the suit O.S.No.34 of 1998. The original sale deed dated01.05.1975 is marked as Ex.B.1. On the other hand, it is thecontention of the learned counsel for the respondent/plaintiff thatthough the property was purchased in his name, he being the Managerof the family obtained the sale deed in his name and consequently it isfor the benefit of the joint family. It was also further pleaded that therewas a partition between the appellant and his two sons and the subjectmatter of the suit in O.S.No.34 of 1998 has fallen to the share of thefather of the plaintiff and consequently a decree for partition wasgranted. When there was already a partition, the question of addingthe 1[st] defendant as a party to the proceedings does not arise. So alsoadding the other joint family members as parties also does not arise.

9. Therefore, in view of the above contentions, the Court has to seewhether there was prior partition between the 1[st] defendant and histwo sons. In fact, both the Courts below on an analysis of the oralevidence came to the conclusion that there was a partition. Unfortunately, both the parties have not adduced necessary evidenceas to what was the extent of the joint family property and what were theparticulars of the properties that were given to the other sharers andthe particulars of the enjoyment of the property are also not producedbefore the court. In fact, the oral evidence adduced by both parties islimited to the parties concerned. Even the 2[nd] defendant, who claimsto have purchased the property, did not choose to file a writtenstatement alleging that he has purchased for valuable considerationbona fidely and that he has to be protected. The learned counsel forthe respondent/plaintiff relied on a decision reported in Govindaraju Vs. Mariamman[[2]]and contended that when there is no plea onbehalf of the 2[nd] defendant by filing written statement or adducingevidence, he cannot agitate any substantial question of law before this Court. The evidence on record of DW.1 has to be taken intoconsideration as against the evidence of the plaintiff, who wasevidently minor and junior member of the family. In cross-examination,he stated that he has got Acs.2.00 Gt., of land from his father bysuccession and he sold the said Acs.2.00 Gt., of land and he wasliving as by coolie.

10. According to him, his elder son was Nagi Reddy and the plaintiffis son of the another son Seetha Rami Reddy, who died. He admitsthat he is residing separately from Nagi Reddy. According to him,except the property purchased under Ex.B.1, there was no otherproperty purchased by him. His evidence goes to show that each ofhis son was cultivating Acs.6.00 Gt., of land each and he wascultivating Acs.2.00 Gt., of land and one Venkanna was his lessee. Therefore, his evidence clearly goes to show that the family is inpossession of more than Acs.14.00 Gt., of land. His evidence does notdisclose as to how Acs.14.00 Gt., of land came into possession of thefamily if he has sold away Acs.2.00 Gt., of land which he got from hisfather. He also further admitted the plaintiff is enjoying his father’sproperty. Therefore, it is quite clear from his admissions that the familywas having substantial property and the sons were living separatelyand each of them have got more than Acs.6.00 Gt., of the land. Consequently, the inference about the truthfulness of the claim of theplaintiff that his father got the schedule properties in O.S.No.34 of 1998appears to be true. The contention of the learned counsel for theappellant that the properties standing in the name of the 1[st] defendantwere included in the earlier suit and it could not have been allotted tothe share of the father of the plaintiff is concerned, I do not find muchsubstance. When all joint family properties were put to partition eventhe properties standing in the name of the 1[st] defendant will be subjectmatter of division and probably the said item of property might havebeen allotted to the share of the father of the plaintiff. Therefore, consequently, the appellant cannot contend that he is owner of theproperty and it could not have been a subject matter of partition in theearlier suit. The evidence of DW.1, who is the 1[st] defendant, clearlygoes to show that there is truth in the claim of the plaintiff that apartition has taken place earlier and in fact, the 1[st] defendant also didnot come with true and correct particulars of the family and itsproperty. Therefore, in view of the above circumstances, when a finaldecree has allotted the share of the property to the plaintiff and whichdecree even otherwise is not challenged by the 1[st] defendant at anypoint of time, it cannot be said that he is the owner of the scheduleproperty. Consequently, the sale in favour of the 2[nd] defendant cannotbe valid. The courts below have rightly appreciated the evidenceabout the question of fact and there is no error in interpreting anydocument and consequently, both the second appeal fail.

11. Accordingly, both the Second Appeals are dismissed. No costs. Miscellaneous Petitions, if any, shall stand closed.

_______________________________

JUSTICE N.R.L. NAGESWARA RAO

Date: 31.12.2012INL

[1](2007) 5 SCC 669[2](2005) 2 SCC 500