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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
BANDARU SYAMSUNDER, J.
D. Latcharao – Petitioner
Versus
B. Suramma – Respondent
S.A. No. 55 of 2002
Decided On : 12-10-2022
PARTITION - JOINT OWNERSHIP - MESNE PROFITS - [SECTION 2(12), 20 RULE 12 CPC] - THE COURT HELD THAT THE FIRST RESPONDENT/PLAINTIFF IS ENTITLED TO HALF SHARE IN THE PLAINT SCHEDULE HOUSE PROPERTY AND ALSO MESNE PROFITS FROM THE DATE OF DECREE.
Fact of the Case:
THE FIRST RESPONDENT/PLAINTIFF FILED A SUIT FOR PARTITION OF THE PLAINT SCHEDULE HOUSE PROPERTY INTO TWO EQUAL SHARES AND ALLOT ONE SUCH SHARE TO HER AND TO AWARD FUTURE PROFITS FROM THE DATE OF SUIT TILL THE DATE OF SEPARATE POSSESSION OF HER SHARE. THE APPELLANT/D1 FILED WRITTEN STATEMENT DENYING THE CLAIM OF THE FIRST RESPONDENT/PLAINTIFF AND PLEADED THAT HE HAS BEEN RESIDING IN THE PLAINT SCHEDULE PROPERTY IN HIS OWN RIGHT SINCE 20 YEARS AND HE IS ALSO PAYING HOUSE TAX, DUE TO THAT FIRST RESPONDENT/PLAINTIFF HAS NO RIGHT IN THE PLAINT SCHEDULE PROPERTY AND THERE IS NO CAUSE OF ACTION FOR FILING THE SUIT.
Finding of the Court:
THE TRIAL COURT AND FIRST APPELLATE COURT GAVE CONCURRENT FINDINGS WITH REGARD TO EX.A1 AND CONTENTS OF THE DOCUMENT ARE NOT IN DISPUTE AND WHEN APPELLANT ALSO NOT DISPUTED THE RELATIONSHIP WITH FIRST RESPONDENT/PLAINTIFF, THIS COURT CANNOT RE-APPRECIATE THE EVIDENCE AND ALSO CANNOT INTERFERE WITH THE DECISION OF COURTS BELOW WITH REGARD TO QUESTION OF FACT.
Issues: 1. WHETHER THE FIRST RESPONDENT/PLAINTIFF IS ENTITLED TO A DECREE FOR POSSESSION? 2. TO WHAT SHARE THE PLAINTIFF IS ENTITLED? 3. WHETHER THE PLAINTIFF IS ENTITLED TO RECOVER POSSESSION? 4. TO WHAT RELIEF?
Ratio Decidendi: 1. THE APPELLANT/D1 IS NOT DISPUTING RELATIONSHIP WITH FIRST RESPONDENT/PLAINTIFF AND SOURCE OF TITLE IN RESPECT OF PLAINT SCHEDULE PROPERTY UNDER EX.A1 BUT APPELLANT RELIED ON EX.B1 TO EX.B9 HOUSE TAX DEMAND NOTICE AND RECEIPTS AND CERTIFICATE ISSUED BY SURPANCH OF THE VILLAGE. 2. THE LEARNED APPELLATE JUDGE RIGHTLY HELD THAT ENTRIES IN THE GRAM PANCHAYAT RECORDS OR REVENUE RECORDS WILL NOT ESTABLISH TITLE AND BASING ON THOSE ENTRIES, IT CANNOT BE SAID THAT APPELLANT HAS BEEN ENJOYING PLAINT SCHEDULE PROPERTY WITH ABSOLUTE RIGHTS. 3. THE APPELLANT ALSO RAISED IN THE GROUNDS OF APPEAL THAT HE HAS BEEN RESIDING IN THE PLAINT SCHEDULE HOUSE AND PAYING HOUSE TAX AND THEREBY HE IS THE ABSOLUTE OWNER OF PLAINT SCHEDULE PROPERTY. IT IS SETTLED LAW THAT MUTATION IN REVENUE RECORDS OR MUNICIPAL RECORDS WILL NOT CREATE OR EXTINGUISH RIGHTS IN IMMOVABLE PROPERTY, WHICH RIGHTLY OBSERVED BY LEARNED APPELLATE JUDGE. 4. THE APPELLANT/D1 ALSO CANNOT PLEAD ADVERSE POSSESSION AGAINST THE JOINT OWNER OF THE PROPERTY WHEN HE IS ALSO TRACING OUT HIS TITLE THROUGH HIS MATERNAL GRANDMOTHER, WHO IS ADMITTEDLY NONE OTHER THAN THE MOTHER OF FIRST RESPONDENT/PLAINTIFF, WHO CLAIMED PROPERTY UNDER EX.A1 REGISTERED SETTLEMENT DEED. 5. IT IS SETTLED LAW THAT THE POSSESSION OF ONE CO-SHARER IS POSSESSION OF ALL CO-SHARERS AND WHEN ONE SHARER IS CLAIMING EXCLUSIVE POSSESSION, HE MUST CLEARLY ESTABLISH THE OUSTER OF THE CO-SHARER AS A CO-OWNER HAS AN INTEREST IN THE WHOLE PROPERTY AND ALSO EVERY PARCEL OF IT AND POSSESSION OF THE JOINT PROPERTY BY ONE CO-OWNER IS IN THE EYE OF LAW POSSESSION OF ALL EVEN IF ALL BUT ONE ARE ACTUALLY OUT OF POSSESSION.
Final Decision: THE SECOND APPEAL IS DISMISSED CONFIRMING THE JUDGMENT AND DECREE PASSED BY COURTS BELOW.
JUDGMENT:
BANDARU SYAMSUNDER, J.
1. The first defendant in O.S. No. 617 of 1987 on the file of District Munsif, Rajahmundry is the appellant herein. The first respondent is the plaintiff and respondents 2 to 4 are defendants 2 to 4 in the suit filed by the plaintiff.
2. The first respondent/plaintiff instituted the suit against the appellant and respondents 2 to 4 for partition of plaint schedule house property bearing Dr. No. 1-60 situated in Kunavaram Agraharam, Kothaveru Central Street, Seethanagaram Mandal, Korukonda of East Godavari District, into two equal shares and allot one such share to her and to award future profits from the date of suit till the date of separate possession of her share.
3. The first respondent/plaintiff averred that herself, one Dulam Gangamma, who is mother of appellant and respondents 2 to 4 and one Kothapalli Rattamma are real sisters, who are daughters of one Vapuri Atchamma and Mr.Ganganna. She pleaded that respondents 2 to 4 are sisters of appellant/D1 and plaint schedule property is self-acquired property of her father Mr. Ganganna, who died leaving plaint schedule property and agricultural land to an extent of Ac. 1.83 cents. The first respondent/plaintiff also pleaded that her father conveyed landed property to his wife Smt. Atchamma, who is her mother, who in turn executed registered settlement deed (Ex.A1) dated 25.01.1952 conveying agricultural land to an extent of Ac. 1.83 cents and plaint schedule property to her daughters to enjoy the same in equal shares. The first respondent/plaintiff claimed that herself, Rattamma, mother of appellant and respondents 2 to 4 are only the children to her parents and she was aged about 12 years by the date of death of her mother in the year 1954, due to that herself and her sisters enjoyed plaint schedule house property jointly and after some time land of Ac. 1.83 cents divided into three equal shares. It is the contention of first respondent/plaintiff that her sister Smt. K. Rattamma died, due to that her share also divided between herself and her sister Gangamma about eight years back and thereafter both have enjoyed plaint schedule property jointly without dividing the same and she used to reside in the plaint schedule house as a joint owner along with appellant and respondents 2 to 4 even after the death of their mother. She also pleaded that she has been cultivating the land fell to her share and she used to store her produce in plaint schedule house and she also used to tether her cattle in the site situated in the plaint schedule property. The first respondent/plaintiff pleaded that she demanded the appellant/D1 for partition of plaint schedule property during the month of May 1987 for which he denied and she also issued legal notice to the appellant. Then, she filed suit for partition and separate possession and also claimed mesne profits.
4. The appellant/D1 filed written statement before the trial Court denying the claim of the first respondent/plaintiff and pleaded that he has been residing in the plaint schedule property in his own right since 20 years and he is also paying house tax, due to that first respondent/plaintiff has no right in the plaint schedule property and there is no cause of action for filing the suit. He also pleaded that he has no knowledge about alleged Ex.A1 settlement deed executed by mother of R1 and it is also not binding on him. He prays to dismiss the suit.
5. Respondents 2 to 4/D2 to D4 remained ex-parte and not chosen to contest the suit.
6. The trial Court basing on the above pleadings, settled the following issues:
2. Whether the plaintiff is entitled to a decree for possession?
3. To what share the plaintiff is entitled?
4. Whether the plaintiff is entitled to recover possession?
5. To what relief?
7. The parties went to trial. First respondent/plaintiff examined herself as PW-1 and one of the villagers as PW-2 and got marked Ex.A1 to Ex.A
THE POSSESSION OF ONE CO-SHARER IS POSSESSION OF ALL CO-SHARERS AND WHEN ONE SHARER IS CLAIMING EXCLUSIVE POSSESSION, HE MUST CLEARLY ESTABLISH THE OUSTER OF THE CO-SHARER AS A CO-OWNER HAS AN INTERE....
The judgment emphasizes that possession by one co-sharer does not constitute adverse possession, and mutation in revenue records does not establish ouster. The need for evidence to prove adverse poss....
Co-owners of a property have an unequivocal right to seek partition regardless of physical possession or claims of exclusive ownership.
Non-alienating coparceners are not bound by the alienation of the other co-owners.
Proper proof of execution of documents and the significance of registration and specific denial of execution are crucial in determining ownership of properties.
A valid oral partition must be substantiated with evidence; unproven claims lead to invalidation of subsequent property transactions.
A party who has relinquished their rights in joint family properties cannot later claim partition or execute a will regarding those properties.
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