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IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Samudrala Govinda Rajulu, J.
K. Salamma - Appellants
Vs.
K. Jayarama Rajulu - Respondent
Second Appeal No. 558 of 1997 and Cross Objections (SR) No. 72303 of 1997
Decided On: 01.04.2013
PARTITION - JOINT OWNERSHIP - EXTENT OF LAND PURCHASED - BOUNDARIES - EVIDENCE - ADMISSIBILITY - MISTAKE IN PYMAISH NUMBER - SECTION 97 OF THE EVIDENCE ACT, 1872 - SECTION 31 OF THE SPECIFIC RELIEF ACT, 1963 - INTERPRETATION.
Fact of the Case:
Plaintiff filed a suit for partition of the plaint schedule property, claiming joint ownership with the defendants' predecessor-in-interest. The defendants contended that the plaintiff had sold the entire suit property to their predecessor-in-interest under a registered sale deed and that they had acquired title to the property by adverse possession. The trial court dismissed the suit, but the lower appellate court allowed the appeal and remanded the suit for framing additional issues and allowing additional evidence. On remand, the trial court again dismissed the suit, but the lower appellate court allowed the appeal and passed a preliminary decree for partition of the property into two equal shares.
Finding of the Court:
The High Court found that the defendants' predecessor-in-interest had purchased only 50 guntas of land, equivalent to Ac. 3-33 1/3 cents, under the sale deed, and not the entire suit property of Ac. 13-75 cents. The Court also found that the boundaries mentioned in the sale deed did not tally with the boundaries of the suit property, and that the defendants were not entitled to claim the entire suit property based on the principle that boundaries prevail over the extent mentioned in the sale deed. The Court further found that the lower appellate court had erred in decreeing partition of the suit property into two equal shares in the absence of pleading and evidence, and without considering the contents of important documents.
Issues: 1. Whether the defendants had perfected title to the suit land by adverse possession. 2. Whether a decree for partition into two equal shares can be passed in the absence of documentary evidence and based on presumption, surmises, and conjectures. 3. Whether a decree for partition can be granted into 2 equal shares, in the absence of a pleading and evidence solely basing upon presumption. 4. Whether the judgment under appeal is perverse as it did not consider at all various important documents namely, sale deed, cist receipts, extract of adangals, letters written by the 1st plaintiff, patta transfer application and oral evidence etc., and whether it is sustainable under law. 5. When the boundaries of Ex. B-1 sale deed tally with the S. No. 48, whether the boundaries of the sale deed should prevail over the extent of land mentioned in the sale deed.
Ratio Decidendi: 1. The defendants did not press the ground of acquisition of title to the suit property by adverse possession. 2. The defendants were entitled to only Ac. 3-33 1/3 cents of land as per their predecessors' patta or at best Ac. 3-33 1/3 cents as per the sale deed and nothing more. 3. The decree for partition of the suit property into two equal shares passed by the lower appellate Court was based on presumption, surmises, and conjectures and should not have been granted in the absence of pleading and evidence. 4. The judgment of the lower appellate Court was not perverse as such, but it did not consider the contents of important documents and is therefore vitiated. 5. The boundaries in the sale deed partly tally with S.No. 48 and partly do not tally, and therefore, the question of boundaries of the sale deed prevailing over the extent of land mentioned therein has no application.
Final Decision: The High Court modified the decree of the lower appellate Court and directed partition of the suit land of Ac. 13-75 cents in S.No. 48 and allotment of Ac. 10-41 2/3 cents in favor of the plaintiffs and Ac. 3-33 1/3 cents in favor of the defendants having regard to equities and good and bad qualities.
Samudrala Govindarajulu, J.
1. The second appeal is filed by the defendants and the cross objections herein are filed by the plaintiffs. In the trial Court, the sole plaintiff who died pending the suit, filed the suit for partition by way of dividing the plaint schedule property of Ac. 13-75 cents in S. No. 48 of Ponnagallu village, Puttur Taluk, Chittoor District into' 2 bits of Ac. 12-24 cents on the Southern side and Ac. 1-51 cents on Northern side and allotting southern Ac. 12-24 cents to the plaintiff and for delivery of the same. It is the plaintiff's case that the plaint schedule property jointly belongs to the plaintiff Kosuri Subbaraju and his brother-in-law Konduri Venkata Swamy Raju and that the 1st defendant is wife and the defendants 2 to 10 are children of Late Venkata Swamy Raju and that the plaintiff is entitled to southern Ac. 12-24 cents out of the suit land. On the other hand, the defendants contend that the schedule property never jointly belonged to the 1st plaintiff and Venkata Swamy Raju and that the 1st plaintiff sold away the suit land to Venkata Swamy Raju under Ex. B-1 registered sale deed dated 27.06.1919 and that since then Venkata Swamy Raju and after him, his legal representatives have been in possession and enjoyment of the suit property in their own right and that their possession is open and hostile to the plaintiffs and so the defendants prescribed title to the suit property by adverse possession also and that the plaintiff is not entitled for partition of the suit property. After trial, the then trial Court (Subordinate Judge's Court, Chittoor) dismissed the suit. On appeal by the plaintiffs, the then lower appellate Court (Additional District Judge's Court, Chittoor) allowed the appeal and remanded the suit to the trial Court giving directions to frame additional issues and giving liberty to adduce additional evidence to both the parties. As against the said remand order, previously second appeal No. 506 of 1980 was filed in this Court. The said second appeal was dismissed by this Court directing the trial Court to dispose of the suit on merits. Thereupon, the suit was made over to Subordinate Judge, Tirupathi on the point of territorial jurisdiction. After adducing additional evidence, the trial Court dismissed the suit upholding all the contentions of the defendants. On appeal by the plaintiffs, the lower appellate Court allowed the appeal and passed preliminary decree for partition of the plaint schedule property into two equal shares and for allotment of one such share to the plaintiffs and the other share to the defendants, after working out equities in between the parties. Questioning the same, the defendants filed this second appeal and the plaintiffs filed cross objections herein. The then Learned Judge of this High Court admitted the second appeal on ground No. 43 of the Memorandum of grounds Second Appeal naming the same as substantial question of law to be determined herein. It is as follows:
"43. The Court below failed to consider that the kist receipts Ex. B-2 to B-19, B-22 to B-24, B-59, B-60 and B-63 for a period of more than 25 years clearly establish that the defendants and their predecessors are enjoying the suit property as of a right and hence even perfected title by adverse possession."
During arguments in this matter, the appellants' counsel contended that ground No. 63 of Memorandum of grounds of Second Appeal contains substantial questions of law. This Court finds that they do constitute substantial questions of law herein. They are as follows:
"(a) Whether the defendants have perfected title to the suit land by adverse possession as pleaded and as held by the trial Court.
(b) Whether the decree for partition into two equal shares can be passed in the absence of documentary evidence as held by the Court below basing upon presumption and surmises and conjectures.
(c) Whether a decree for partition can be granted into 2 equal shares, in the absence of a pleading and
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