IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE SRI JUSTICE K.C. BHANU
SECOND APPEAL Nos.305 of 2010 AND 420 OF 2010
COMMON JUDGMENT:
These Second Appeals, under Section 100 of the Code of Civil Procedure, 1908, are directed against the common judgment and decree, dated 28.07.2009 in A.S.Nos.4 of 2007 and 5 of 2007, on the file of the Senior Civil Judge, Kadiri, whereunder and whereby, the common judgment and separate decrees, dated 17.02.2007, in O.S.Nos.2 of 1999 and 363 of 1999, on the file of the Principal Junior Civil Judge, Kadiri, dismissing O.S.No.2 of 1999 and decreeing O.S.No.363 of 1999, were confirmed.
2. The brief facts that are necessary for disposal of the present appeals may be delineated as follows:
Plaintiffs in O.S.No.2 of 1999, who are defendants in O.S.No.363 of 1999, stated that the schedule mentioned property was ancestral property of three brothers (1) Kothapalle Nalla Gangappa (2) Kothapalle Alamanna and (3) Kothapalle Ramappa, who are sons of one Ganganna. They were in joint possession and enjoyment of the property. Kothapalle Alamanna died leaving behind him his two sons Papanna and Ganganna to succeed his share in joint family properties. Papanna and Ganganna also died issueless long back. Hence, the share of Kothapalle Alamanna devolved on the branches of other two brothers Gangappa and Ramappa. Hence their branches got a joint half share in all the suit properties and have been in possession and enjoyment. The Legal Representatives of Nalla Gangappa are the defendants and the Legal Representatives of Ramappa are the plaintiffs. At present the parties herein are the only legal heirs living in both the braches. The plaintiffs claim that there was no partition and they have been enjoying the suit property according to their convenience. There were misunderstandings between them. Hence they felt that it is not possible to enjoy the properties jointly and they demanded the defendants for amicable partition. The plaintiffs also got issued a registered lawyer notice demanding partition. Some of the defendants were served with the notice. But, they neither replied, nor came forward for partition. Hence, the plaintiffs filed the suit for partition. The plaintiffs 9 to 13 are added as Legal Representatives of plaintiff No.8, who died during the pendency of the suit.
3. Defendants in O.S.No.2 of 1999, who are Plaintiffs in O.S.No.363 of 1999, submitted that the names of original three brothers are Kothapalle Gangappa @ Nalasingu, Kothapalle Alamanna and Kothapalle Ramanna @ Ramugadu. According to them, the first brother Gangappa @ Nalasingu had only one son Akkulappa, who got a son by name China Nalla Gangappa. There are no other heirs. The second brother Alamanna had only one son named Gangulappa @ Gangadu, who died issueless. The third son Ramanna @ Ramu gadu had four sons – Gangulappa, Lakshmanna, Papanna @ Papigadu and Alankadu. Long back the three brothers divided and the branch of Kothapalle Ramanna has been enjoying their share jointly among the legal representatives and the branch of Gangappa is enjoying their 1/3rdshare. Whereas the share of the second brother Alamanna is concerned, there were disputes between the family of first brother Gangappa and third brother Ramanna, whereby they have been living separately, but enjoying the property jointly. Later two relinquishment deeds were executed by the legal representatives of the first brother Gangappa and third brother Ramanna. Regarding the share of the deceased Kothapalle Alamanna in the land in Survey No.96, the brother of Gangappa @ Nalasingu relinquished his right, whereas the branch of Ramanna relinquished their right in the land in Survey No.78 in favour of the branch of Gangappa, whereby the extents possessed by them are differed. Later there are some sales made by some of the co-sharers in the year 1932 and 1969. In the year 1970, there was a division of lands in Survey Nos.96 and 78, wherein the defendant Nos.5 to 12 and Pullappa and Vemanari, who belong to the branch of Nalla Gangappa together got the properties shown in the schedule and the plaintiff Nos.7 and 8 together got the rest of the extents in Survey Nos.96 and 78 without any share in the well. Plaintiff Nos.1 to 6 had no share in those survey numbers and well. Later Pullappa and Vemanari divided their share with defendant Nos.5 to 12, wherein defendant Nos.5 to 12 together got suit schedule properties and some other property at Veerabanapalli to their share. Pullappa and Vemanari got the property at Putlavandlapalli. Thus, the defendant Nos.5 to 12 are entitled for the suit property exclusively. There is a well in Survey No.96 with motor fixed to it having electricity connection obtained in the name of defendant No.12 and they have been paying electricity charges as per their shares. Plaintiff Nos.7 and 8 only got Ac.0-20 cents in Survey No.96 on the southern side and Ac.0-14 cents in survey No.78 on the northern side, which they are enjoying exclusively. Plaintiff Nos.1 to 6 have no right in those survey numbers. Defendant Nos.1 to 4 colluded with plaintiff Nos.1 to 6 with intent to harass defendant Nos.5 to 12 and got filed the suit and the suit is liable to be dismissed.
4. Basing on the above pleadings, the following issues are framed for trial in O.S.Nos.2 of 1999 and 363 of 1999:
“O.S.No.2 of 1999:
1. Whether the plaintiffs are entitled for partition and separate possession of half share in the suit schedule properties as prayed for?
2. To what relief?”
O.S.No.363 of 1999:
1. Whether the plaintiffs are entitled for a permanent injunction as prayed for?
2. To what relief?”
5. During trial, PWs.1, 2 and 4 were examined and Exs.A1 to A3 were got marked on behalf of the plaintiffs. The evidence of PW.3 was eschewed, as he failed to appear for cross-examination. On behalf of the defendants, DWs.1 to 3 were examined and Exs.B1 to B17 were marked.
6. The trial Court after considering the evidence on record came to the conclusion that the appellants’ herein/plaintiffs in O.S.No.2 of 1999 failed to establish that they have got right, title and interest in the suit schedule property and accordingly, dismissed O.S.No.2 of 1999 and decreed O.S.No.363 of 1999. On two separate appeals by the plaintiffs in O.S.No.2 of 1999, who are defendants in O.S.No.363 of 1999, the common judgment and separate decrees of the trial Court were confirmed. Challenging the same, the present appeals are filed by the plaintiffs in O.S.No.2 of 1999.
7. Now the points for determination are (i) whether there is any substantial question of law involved in these two appeals?
(ii) Whether the findings of common judgments of both the Court below are perverse?
(ii) Whether the findings of common judgments of both the Court below are perverse?
8. Learned counsel appearing for the appellants contended that the findings of the Courts below are perverse, as the Courts below totally ignored the documentary evidence produced by the appellants; that the courts below ignored the evidence adduced by the appellants, who are the co-owners of the property along with the respondents; that the entries in revenue records prove title of the property; that without there being credence to Exs.B1 to B3, they were admitted in evidence without proof of those documents and therefore, the findings of both the Courts below are not in accordance with law and hence, prays to set aside the impugned common judgment and decree.
9. Except the evidence of PWs.1, 2 and 4 in O.S.No.2 of 1999, to the effect that the appellants herein and respondents have got half share each in the suit schedule property and are enjoying jointly the possession of the property, there is absolutely no evidence to show that how the appellants herein have got right, title and interest in the suit schedule property. On the other hand, the case of the respondents is that the appellants herein do not have any right, title and interest in the property in view of the fact that the ancestors of the appellants herein already relinquished their share in the property in the year 1924 itself.
10. The trial Court as well as the first appellate Court placed reliance on Exs.B1 and B2, which are registered relinquishment deeds executed by the parties therein relinquishing their right in the land in survey Nos.96 and 98 respectively on account of the disputes regarding the share of one Gangadu, S/o. Alamanna. Under Original of Ex.B1, sons of Ramappa relinquished 1/3rd share of land in Survey No.96 in favour of Akkulu Gadu. Similarly, under the original of Ex.B2, Akkulu Gadu and his son relinquished their 1/3rd share of the land in Survey No.78 in favour of Gangadu, son of Ramappa. One of the contentions of the learned counsel for the appellants is that Exs.B1 and B2 were not proved, because the parties to the documents were not examined and therefore, question of marking those documents does not arise. When the respondents herein had taken a specific plea with regard to relinquishment of the right in the lands in Survey Nos.96 and 78, that aspect of the case has not been denied or disputed by the appellants herein by filing a rejoinder. But, when the respondents marked the said documents, the appellants herein have not taken any objection. That apart, they are more than 30 years old and so, there is a presumption that they are duly executed. It is the contention of the learned counsel for the appellants that the ancestors of appellants have not executed any relinquishment deeds and denied about the contents of Exs.B1 and B2 documents. At this point of time, the learned counsel for the appellants cannot raise objection for the first time before this Court with regard to the contents in Exs.B1 and B2 and the same cannot be entertained. That argument cannot be accepted because under the originals of Exs.B1 and B2 it is clear that the ancestors of the appellants herein have already relinquished their right in respect of the suit schedule property. If that is the case, they do not have right, title and interest in the property, so as to claim half share in the property under Exs.A1 to A3, which are the revenue records, namely, 10 (1) Account, No.2 Adangal and Office copy of notice. Appellants herein have not filed any document to show that the ancestors of appellants herein have got right, title and interest in the property. There cannot be any dispute that the revenue records, namely, 10 (1) Account and No.2 Adangal and Office copy of notice, do not confer any title to the parties. They can be looked into for some other purpose, which are maintained by the revenue officials. Ex.B3 is the registration extract of sale deed, dated 29.02.1932, executed by Lakshmanna and Alamanna in favour of Akkulappa for sale of property of 1/6th land in Survey No.96 and 1/3rd share of land in Survey No.78. Ex.B4 is another extract of sale deed, dated 30.05.1969, executed by Pedda Rammanna and others in favour of Narappa in respect of 1/12th share of land in Survey No.96 and 1/6th share of land in Survey No.78. One of the executants of that document is none other than plaintiff No.2 in O.S.No.2 of 1999. Exs.B3 and B4 are not disputed by the appellants. Therefore, in the absence of any evidence appellants herein cannot get a title. Therefore, the trial Court rightly dismissed the suit for partition.
11. On the other hand, the respondents, who filed the suit for permanent injunction, clearly established that they have got a title in pursuance of originals of Exs.B1 to B3. Similarly, these three documents would go to show that the respondents were in possession and enjoyment of the property. There cannot be any dispute that payment of taxes to the government is an evidence of possession. Therefore, the evidence would go to show that the respondents were in possession and enjoyment of the property and accordingly, the trial Court rightly granted injunction in favour of the respondents. A perusal of the judgments of the Courts below would go to show that both the Courts below gave a finding basing on proper appreciation of evidence on record, duly taking the admissible evidence into consideration. None of the findings is incorrect or improper. In the absence of any perverse findings by the Courts below, there are no grounds to set aside the impugned judgments. Not even a question of law is involved in the Second Appeal. In the absence of any substantial question of law, the question of admitting the appeals does not arise.
12. Accordingly, the Second Appeals are dismissed at the stage of admission. There shall be no order as to costs.
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K.C. BHANU, J
November 10, 2010
MD
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