2002 Supreme(AP) 1067

Andhra Pradesh High Court
Judges : B.S.A.SWAMY, D.S.R.VERMA
Dodla Chinnabbai Reddy - Appellant
Versus
Dodla Kumara Swami Reddy - Respondent
Decided On : 09-06-02

Headnote:

Land Laws – Civil Matter- Civil Law - Land Acquisition Act, - section 6 - Hindu Succession Act, 1956 – Section 29-A, sec 92 – Code of civil procedure ,1908 - Rule 9 of Order 1 , Order 41, Rule 33, Order 41 Rules 22 and 33 Order 41, Rules 14 - Plaintiff contention of 1st defendant is that in fact partition was effected between parties about 30 years ago i.e during year 1953 and same was recorded in register maintained regarding particulars of family properties - Properties mentioned in written statement were allotted to plaintiff and defendants respectively and they have been paying cist separately in respect of their separate alleged shares - Declarations were also made to this effect before Land reforms Tribunal, That plaintiff sold ac. 7. 55 cents of land at Annareddipalem in favor of third parties under an agreement of sale dated - But at intervention of mediators on executed a memorandum of understanding agreeing to effect partition of family properties - In said agreement, 1st defendant also signed but with a rider "subject to agreement of his sons" - But subsequently 1st defendant went back on his promise by contending that agreement amounts to repartition of properties already partitioned in year 1953 and that said agreement cannot be acted upon - He further contends that if properties were to be treated as joint, it is only 2nd defendant who could be treated as manager of family, not himself - He also denies averment that he sold some of properties at Buchireddipalem, except land in, which as joint family property of himself and his sons - It is his specific case that said land fell to his share in partition that took place in year 1953 and since then same is in possession and enjoyment of his family members and same was disposed of by him and his sons - To put in a different way, even though there was an agreement terms and conditions of said agreement were never acted upon, inasmuch as partition was already effected in year 1953 and pursuant to such partition, properties which had fallen to his share were alienated to third parties and, therefore, according to him in reality partition had already taken place in the year 1953 and same was given effect to and alleged partition effected was never acted upon - He further avers that he and his sons became further divided 15 years back i. e. , even much prior to Ex. Al agreement for partition and each of them are in possession of properties that fell to their shares by paying cist separately - Defendants 2 and 3 did not object for division of properties as alleged by plaintiff - Contended that if necessary parties are not impleaded, appeal cannot be entertained and same has to be dismissed on that account itself, as infirmity is fatal - In support of this contention, he relied on judgment of Supreme court reported - He further contended that if necessary party dies during pendency of proceedings and if legal representatives of such necessary party are not brought on record - Contended that even on merits, there is enormous evidence on record in order to show that earlier partition of year 1953 was given effect to and parties to said partition have been in separate possession and enjoyment of their respective shares and some of parties including plaintiff have also disposed of properties that fell to their share to third parties - Nextly they filed separate declarations before Land Reforms Tribunal and findings of Tribunal have become final and hence he finally contends that alleged partition agreement said to have been entered into between plaintiff and defendants in year 1982 under Ex. A1 was not acted upon - Held , Court if there was no earlier partition, plaintiff or other defendants should have shown entire property belonging to joint family and should have shown l/4th undivided share therein - But that did not happen -It appears that plaintiff and defendants had filed separate declarations in respect of lands held by them - In this connection other details as discussed by trial Court are not necessary - Even if this document is eschewed from consideration, as pointed out by trial Court, there is other enormous evidence on record i. e, by way of admissions of plaintiff himself and other material, which clinchingly prove earlier partition of year 1953 - Judge had taken into account factor that since 1 st defendant had voluntarily signle (settlement) and since there was no coercion or compulsion, 1st defendant is bound by Ex. A-1 - It is also further observed that 1st defendant had issued no notice denying Ex. A-1 - Learned single Judge also found that 1st defendant in his evidence simply deposed that plaintiff and defendants 2 and 3 have been aggrieved with fact that price of his land has increased and they wanted repartition and that he told that already he had partitioned his lands to his sons and if they agree, he had no objection and his sons did not agree for reopening the partition - Already highlighted which were not considered by learned single Judge, though on record, would only strengthens - Contention of 1st defendant that Ex. A-1 was acceptable subject to approval of his sons and, therefore, he signed Ex. A-1 voluntarily - That means his signing on Ex. A-1 though voluntary, was conditional - Court view of above important factors, court hold that there was earlier partition in year 1953 and Ex. A-1 settlement is not binding - Further Ex. A-1 was entered into in year 1982 and the suit was filed in year 1986 - Considering all these factors we hold that finding of learned single Judge in believing Ex. A-1 by not appreciating crucial evidence both oral and documentary on record, merits only reversal - LPA is allowed