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2010 Supreme(AP) 1036
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE VILAS V. AFZULPURKAR
B. Nadamuni Chetty
Versus
P. Krishna Reddy & Others
Second Appeal No.212 of 1999
Decided On : 22-10-2010
For the Appellant:Dorai Raj, Advocate.
For the Respondents:J. Ugranarasimha, Advocate.
Headnote:
Constitution of India - Mutation proceedings - Evidence on record - Pendency of the suit - Schedule properties - Appeal by third defendant questioning judgment and decree of lower appellate Court confirming the judgment - First respondent herein is plaintiff who filed O.S.No for partition of suit schedule properties against first defendant – Elder brother second defendant – First defendant’s wife third defendant – Appellant herein a linee in respect of item of plaint schedule and defendants who are other alienees of plaint schedule properties just like third defendant - Defendant No.14 is one of brothers who joined first respondent/plaintiff in filing suit but was later transposed as defendant - For sake of convenience - Parties herein are referred to as they are arrayed in the suit - Appellant – Third defendant had purchased item 1 of plaint schedule properties and fact that dispute relating to other plaint schedule items was already settled during pendency of the suit dispute now survives only to extent of item 1 of plaint schedule - Whether both lower Courts have committed serious error of law in not considering in proper perspective which lead to miscarriage of justice and also whether finding in this regard are perverse in law - Whether both lower Courts have whole evidence and failure on part of both presumption that property is joint till it is established by cogent reliable evidence about separateness and also acquisition by 1st defendant that has been dislodged by documentary evidence placed by this appellant – Held, Court was impressed and got swayed by Ex.A10 – Complaint which third defendant is said to have filed against first defendant contending that he was cheated by first defendant by showing the partition deed before selling item 1 of the plaint schedule property - Complaint by itself cannot be taken as a proof and secondly lower appellate Court had lost sight of fact that sale of item 1 of plaint schedule in favour of third defendant under - Whereas said complaint years after Ex.B1 - There is no evidence as to further proceedings in pursuance of said complaint and merely on basis of the said complaint said to have been filed by third defendant lower appellate Court accepted the case of the plaintiff and confirmed the decree granted by the trial Court - therefore, clear and evident that judgments of both the Courts below are opposed to the settled legal position and further, there are very serious errors of appreciation of evidence including the error in shifting the burden of proof on to the defendants 1 and 2 than that of plaintiff – Court am therefore, satisfied that both the impugned judgments are clearly perverse and are liable to be interfered with and set aside. The substantial question of law framed underground 8(d) is answered in favour of the appellant and consequently suit on file of Additional Subordinate Judge - Second appeal accordingly is allowed
1. This is an appeal by the third defendant questioning the judgment and decree of the lower appellate Court in A.S.No.8 of 1992 dated 28.01.1998 confirming the judgment of the trial Court in O.S.No.6 of 1987 dated 04.11.1991.
2. The first respondent herein is the plaintiff, who filed O.S.No.6 of 1987 for partition of the suit schedule properties against the first defendant – his elder brother, second defendant – first defendant’s wife, third defendant – appellant herein alinee in respect of item 1 of plaint schedule and defendants 4 to 13, who are other alienees of the plaint schedule properties just like the third defendant. The defendant No.14 is one of the brothers, who joined first respondent/plaintiff in filing the suit but was later transposed as defendant No.14. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit.
3. The appellant – third defendant had purchased item 1 of plaint schedule properties and in view of the fact that the dispute relating to other plaint schedule items was already settled during the pendency of the suit, the dispute now survives only to the extent of item 1 of plaint schedule.
4. The plaintiff/first respondent herein claimed in the suit that he, the first defendant and defendant No.14 are all brothers allegedly constitute Hindu undivided family and the first defendant being the eldest, he is the manager of the said Hindu Undivided Family. It is alleged that all the three brothers jointly carried on business and earned properties, which are shown in the plaint schedule and though the said items stand in the name of the first defendant, he being the eldest of the brothers and the Manager, other brothers including the plaintiff have a right to seek partition of the plaint schedule properties. It is alleged that the first defendant is acting adverse to the plaintiff and defendant No.14 and alienated the plaint schedule properties to the third defendant and other defendants 4 to 13 and alleging that the said alienations are collusive, nominal and not binding on the plaintiff, the present suit for partition and possession of separate of 1/3rd was filed.
5. The first defendant filed a detailed written statement admitting the relationship but seriously disputed the remaining allegations in the plaint. He disputed the right, title and interest of the plaintiff and defendant No.14 and claimed that there is neither any joint family nor any joint family property nor the first defendant has acted as Manager. He alleged that the plaint schedule properties are his own and self-acquired properties and exercising individual rights, he has alienated the properties. He also asserted that since he purchased item 1 of plaint schedule under sale deed dated 21.06.1971 for Rs.2,000/-from vendor – S. Ramalinga Reddy, he has been in exclusive enjoyment and possession and that all the title deeds are in his name and the municipal taxes and assessment is also in his name. He also asserts that the Tirupati Municipality has proceeded against him for making unauthorized construction and he alone is paying the taxes to the municipality and exercising absolute rights. He, further, claimed that on 10.11.1976 he entered into agreement of sale with the third defendant for Rs.56,000/-and on the date of sale he was paid Rs.11,000/- and the balance sale consideration was agreed to be paid on or before 10.02.1987. He claimed that the third defendant paid various amounts and was delivered possession on 10.12.1986 and later executed registered sale deed dated 15.01.1987 in his favour after receiving balance consideration amount. He also asserted that items 2 and 3 of plaint schedule were also sold to third parties and at no point of time the plaintiff and defendant No.14 raised any objection. He, therefore, seriously disputed the claim of the plaintiff as stated in the plaint and claimed that he had always been doing Soda business independently and it is alleged that the plaintiff
