Andhra HC (Pre-Telangana)
J. Jagannatha Reddy vs J. Ravinder Reddy And Ors. on 6 September, 2002
Equivalent citations: 2002(6)ALD435, 2002(6)ALT502
JUDGMENT D.S.R. Varma, J.
1. The present L.P.As. are filed against the judgment and decree dated 6-4-1993 passed by this Court in CCCA No. 185 of 1982.
2. LPA No. 215 of 1994 is filed by defendant No. 6 aggrieved by the findings of the trial Court, as confirmed by the learned single Judge, with regard to house No. 1-41 i.e., item No. 1 of B schedule property.
3. LPA No. 216 of 1994 is filed by the plaintiffs 1 and 2 in the suit aggrieved by the judgment of the learned single Judge, confirming the judgment of the Court in OS No. 251/1980.
4. Since both the appeals arise out of same judgment and decree dated 6-4-1993 in CCC No. 185 of 1982, they are being disposed of by this common judgment. For the sake of convenience, the parties shall be referred as plaintiffs and defendants i.e., as per their array in the original suit.
5. The brief facts are as follows:-
6. Plaintiffs 1 and 2 and defendant No. 1 are brothers and are sons of late Laxma Reddy. Defendants 2 and 3 are their sisters. Plaintiff No. 3 is the son of plaintiff No. 1 and plaintiffs 4 to 6 are the sons of plaintiff No. 2. Defendant No. 4 is the wife of defendant No. 1. Defendant No. 5 is said to be the purchaser of one of item of suit schedule properties from defendant No. 1 and again he sold to some others, who are not parties to the suit. Defendant No. 6 claims to have share in one of the suit properties viz., a residential house in the village. He is the son of brother's son of the Laxma Reddy i.e., father of plaintiffs 1 and 2 and defendant No. 1. Defendant No. 7 claims to have purchased some of the items of the suit properties and he got himself impleaded in the suit.
7. Plaint A, B, and C schedules are the joint family properties of the plaintiffs and defendant No. 1. Defendant No. 1 is the eldest of the brothers. The plaintiffs, defendant Nos. 1 to 3 and their father Laxma Reddy constitute a joint Hindu family and all the plaint schedule properties are their joint family properties. Laxma Reddy, who is their father, died intestate on 8-5-1973 and on his death, his 1/4th undivided share devolved on the plaintiffs 1 and 2 and defendants 1 to 3 in equal shares. The plaintiffs 1 and 2 and defendant No. 1 are entitled to 30 shares and defendants 2 and 3 are entitled to five shares each. However, the family continued to be joint and since the 1st defendant is the eldest son of Laxma Reddy, he became the karta of the family and was acting as such. Certain items in the suit schedule standing in the name of defendant No. 4, who is the wife of defendant No. 1, are -also part of the joint family properties. Consequent upon some disputes among the joint family members, the suit came to be filed for partition of the joint family properties.
8. Defendant No. 1 is the main contestant and defendants 2 and 3, remained ex parte. Defendant No. 4 filed memo adopting the written statement of defendant No. 1. The defendant No. 5 is the alienee of defendant No. 1 and he supported the claim of defendant No. 1. Defendant No. 6 is late Laxma Reddy's brother's son and he claims a share in item No. 1 of B schedule properties.
9. In the written statement, defendant No. 1 stated that there was a partition among late Laxma Reddy and his three sons namely the plaintiffs 1 and 2 and the defendant No. 1 in the year 1957 and ever since they have been enjoying the property that fell to their respective shares. To the written statement, the defendant No. 1 attached a schedule showing different properties that fell to the Share of different shareholders. The details with regard to the shares that fell to different shareholders are not relevant for the purpose of deciding the issues raised in this appeal. It is important to note that with regard to the house property situated at Malakpet, a suit was filed in OS No. 445/1974 on the file of I Additional Judge, City Civil Court, Hyderabad, and the same was decreed in the year 1976. Since then, each of the parties are in possession and enjoyment of different portions of the house allotted to them. It is further specifically averred that the lands allotted to the share of the father, Laxma Reddy were leased out by defendant No. 1 and he transferred these lands to the tenants after receiving consideration from them.
10. In order to substantiate the above averments, the defendant No. 1 filed certain documents like the declarations filed by the sharers under the A.P. Ceiling on Agricultural Holding Act, 1974 (hereinafter referred to as 'the ceiling Act) and in those declarations, the properties that were allotted to them in the partition, were declared separately and all the brothers received compensation for the excess lands surrendered by them. With these averments, the defendant No. 1 sought for dismissal of the suit.
11. the defendant No. 6 was originally not a party to the suit and he got himself impleaded and filed the written statement contending that the father of plaintiffs 1 and 2 and defendant No. 1 and his father were real brothers. They jointly possessed item No. 1 of the plaint B schedule, which is residential house with some appurtenant land. The father of defendant No. 6 died while he was aged about three years and he is the sole heir of his father and, therefore, he got half share in item No. 1 of B schedule. He further contended that by way of mutual adjustment, defendant No. 6 has been in possession of two rooms and the verandah of ground floor and six rooms, the halls and verandah in upstairs. Laxma Reddy i.e., the father of the plaintiffs 1 and 2 and defendant No. 1, was in possession of seven rooms, two halls, three verandahs on ground floor and four rooms and one verandah of upstairs and after his death, his heirs are in possession of the said portions. The house has got two separate entrances and they are given Municipal Nos. 1-41 and 1-42. The house is not divided by metes and bounds and as such he is entitled to half share in the said house. Hence he sought partition of item No. 1 of B schedule and for delivery of half share to him.
12. Defendant No. 7 who claims to have purchased some of the suit schedule properties filed written statement contending that the plaintiff No. 1 representing that S.Nos. 178 to 181 of Potlapalli Village of Shadnagar Taluq fell to his share in partition and executed a sale agreement dated 13-8-1976 in his favour, agreeing to sell the said land for a consideration of Rs. 6,800/-. He paid the entire consideration and he is in possession of the said lands since then. He prayed that if the Court were to hold that there was no partition and in the event of ordering partition, the land held by defendant No. 7 may be allotted to the share of the plaintiff No. 1. After filing written statement, he remained ex parte.
13. The trial Court basing on the above pleadings, framed the following points :
1. Whether the plaintiffs 1 and 2 and the defendant No. 1 constitute a joint family and whether the defendant No. 1 is the karta of the said family?
2. Whether the plaintiffs 1 and 2, defendant No. 1 and their father Laxma Reddy was the karta of the joint family?
3. Whether the suit schedule properties are ancestral joint family properties and whether they are available for partition?
4. Whether there was a partition of the joint family properties and whether the properties are allotted as mentioned in schedule 'A' to the written statement of defendant No. 1?
5. Whether the defendant No. 1, since the partition is in exclusive possession and enjoyment as absolute and exclusive owner?
6. Whether item No. 3 of plaint 'B' schedule properties and item 1 to 6 of plaint 'C' schedule properties and items 1 to 4 of plaint 'a' schedule property are the exclusive properties of the defendant No. 1?
7. Whether the suit is properly valued and whether the Court fee paid is correct?
8. To what relief?
14. On behalf of the plaintiffs, 2nd plaintiff was examined as PW1 and another person by name Moniah, claiming that he worked as clerk under Laxma Reddy. On behalf of the plaintiffs Exs.A1 to A8 were marked. In support of the case of the defendants, 6th defendant was examined as DW1 and the 1st defendant was examined as DW2. Exs.B1 to B108 were marked.
15. The trial Court having considered the entire evidence, both oral and documentary held that the plaintiffs 1 and 2 and defendant No. 1 and their father did constitute members of a joint family and late Laxma Reddy was karta up to 1957 and not thereafter as there was a partition between the members of the joint family wherein the properties were divided by metes and bounds and no ancestral property is available for partition and if at all there is any property available for partition among brothers, it is the property than fell to the share of Laxma Reddy. The trial Court further held that defendant No. 1 has been in exclusive possession of his lands since the partition as absolute owner. It is further held that defendant No. 6 cannot have any claim to item No. 1 of plaint B schedule property and accordingly the trial Court passed a preliminary decree for partition of the lands that fell to the share of Laxma Reddy as per the schedule attached to the written statement of the defendant No. 1, if they are available, into five equal shares and for delivery of separate possession of one such share each to the plaintiffs 1 and 2 and defendant Nos. 1 to 3 and the trial Court dismissed the rest of the claim.
16. Aggrieved by the decree passed by the trial Court, the plaintiffs preferred an appeal in CCA No. 185 of 1992 and this Court on re-appreciation of the entire evidence, confirmed the judgment and decree passed by the trial Court in all respects and dismissed the appeal Again not being satisfied with the judgment of the learned single Judge, the plaintiffs 1 and 2 have preferred LPA No. 216 of 1994 and the defendant No. 6 filed LPA No. 215/1994.
17. The learned Counsel for the appellants in both the LPAs. vehemently contended that when the Court relief upon an un-registered and un-stamped partition deed in proving that there was a partition in the year 1957 which was not marked, it is not open either for the trial Court or for the appellant Court to take into account the other evidence to come to the conclusion that partition was effected, and this is not permissible in view of Section 91 of the Indian Evidence Act In other words, he contends that when the defendant No. 1 relied on an unregistered partition deed, in order to prove the same, the only course open for him, is to get the document marked and no other evidence shall be given in proof of the same. In support of his contention, he relied on the Full Bench judgment of the Madras High Court in Ramayya v. Achamma, AIR 1944 Mad. 550. He also brought to the notice of this Court various other judgments of Madras High Court and of Privy Council, but his main thrust is on the Full Bench judgment of the Madras High Court referred supra and hence the other judgments are not relevant for consideration.
18. On the contrary, the learned Counsel for the respondents heavily relied on a Full Bench judgment of this Court in K. Kannareddy v. Venkat Reddy, and contended that even though the alleged partition is reduced to writing, the same could not be admitted into evidence for want of stamp duty and registration and since the said document is not admitted, it cannot be said that for proving the alleged partition, no other evidence could be adduced. He further submitted that both the Courts below basing on both oral and documentary evidence, have rightly dismissed the suit for partition and as such there are no merits in this LPA.
19. From the above, the point that falls for our consideration is, when a partition deed was alleged to have been executed and when the same was not admitted in evidence for want of registration and stamp duty, can the Court permit the parties to adduce other evidence for proving the factum of earlier partition?
20. The issue is squarely covered by a Full Bench Bench judgment of this Court referred supra which was approved by another 5 Judge Bench of this Court in Muthyalareddy v. Venkatareddy, .
21. The learned Counsel for the appellants Sri K. Pratap Reddy fairly submitted that the judgment of the Madras High Court in Ramayya's case, referred supra, is not binding and only the Full Bench decisions of this Court are binding on this Court.
22. Only to recapitulate the settled legal position after many years, and for the benefit of the legal fraternity we once again consider the issue in the light of the arguments addressed before this Court.
23. From a reading of the Full Bench judgment of the Madras High Court (supra), it reveals, that it was a case where the wife of the deceased coparcener filed the suit for ejectment of the brothers of her husband and recovery of possession of specified properties. Her case was that in the partition effected on 1-3-1934 her husband obtained possession of the properties which were allotted to him and remained in possession till his death in the year 1938 and after his death, his brothers trespassed over the suit properties and dispossessed her. The farther case of the plaintiff therein was that a document had been executed and signed by the parties evidencing partition. The defendants denied the said fact.
24. Since the partition deed, on the basis of which properties were allotted to her deceased husband, was not registered, the same was held to be inadmissible in evidence. Then the plaintiff sought to prove the terms of the partition by means of other evidence. Considering those set of facts, the Full Bench of the Madras High Court held that since the plaintiff wants to prove some of the terms of the unregistered partition deed, by means of other evidence, the same is not permissible in view of Section 91 of the Indian Evidence Act.
25. A Division Bench of this Court in Nookaraju v. Ramamurthi, AIR 1962 AP 443, wherein the facts reveal that the plaintiff therein filed the suit for partition. The defence was that the partition was already effected some years back and therefore the suit was not maintainable. The facts further reveal that under an unregistered partition deed (Ex.B5), specific items of land were allotted to the plaintiff represented by his mother as guardian. The Division Bench of this Court following the Full Bench judgment of the Madras High Court referred to K. Kanna Reddy's case (supra) and also other judgments held as under-
In this cause, as Exhibit B5 is not admissible in evidence, the partition concerned in it (Ex.B5) cannot be proved by other evidence. The result, in law is that there was no valid partition at all and the plaintiff has adopted the right course in filing the present suit for partition. The partition alleged to have taken place was in 1949 and the suit was filed in 1956 i.e., within twelve years. We disagree with the finding of the learned Subordinate Judge on this issue and hold that there was no valid partition in 1949 under Ex.B5 or otherwise, and that the partition alleged by defendants 1 and 2 is not valid and binding upon the plaintiff. In this view, there is no need to go into the other evidence regarding partition.
26. A Full Bench of this Court in Kanna Reddy's case (supra) disagreeing with the above view expressed by this Court held that despite the document of partition being hit by Section 49 of the Registration Act, the factum of partition could well be proved by other evidence and the same is not prohibited by Section 91 of the Indian Evidence Act, since the party is not seeking to prove any of the terms of the disposition of property purported to be made under the unregistered partition deed. It further held that if the prior partition is established by evidence, fresh suit for partition does not lie.
27. In the above case this Court, it is clear that this Court having considered various decisions, including decisions which were referred to by the learned Counsel for the appellants and after distinguishing the judgment of the Full Bench of Madras High Court in Kanna Reddy's case (supra) held at paragraph No. 9 as under:-
....But the existence as a fact of a prior partition will non-suit a plaintiff who comes to the Court with a suit for fresh partition. The circumstances that the earlier partition was evidenced by an unregistered partition deed will not render proof of the factum of that partition by other evidence inadmissible under Section 91 of Evidence Act, because this section excludes oral evidence only in proof of the terms and not of the existence as a fact of a contract, grant or other disposition of property.
28. The Lordships while dealing with the effect of Section 49 of the Registration Act observed at paragraph No. 16 as under:-
...Section 49 does not operate to efface any fact. It is not even concerned with what can be proved and what cannot be. It only disqualifies, so to say, unregistered documents which fall with in its mischief. Clause (a) of it says that a document which falls within the purview of Section 17 and is not registered shall not serve to create, declare, assign limit or extinguish any right, title or interest in the immovable property comprised in it. The respondent before us does not base any claim to property on the unregistered partition deed. Therefore, Clause (a) of Section 49 does not confront him. Nor does Clause (c) trouble him because he does not seek to tender the unregistered document as evidence. We have earlier in this judgment considered the ambit of Section 49. There is absolutely nothing in it to obliterate the existence of a fact a concept hardly familiar to law.
29. Keeping the dicta laid down in the above case, it has to be noted that in the instant case also the defendant No. 1 did not rely on any document i.e., partition deed said to have been reduced to writing as contemplated under Section 91 of the Indian Evidence Act. It appears from the record that the defendant No. 1 sought for making of partition deed, but the same was rejected by the trial Court for want of stamp duty and registration.
30. The Full Bench of this Court in the decision in K. Kanna Reddy's case (supra) further observed at paragraph No. 17 as under:-
....The terms of a partition deed are really the details of partition the mode and manner in which the partition is effected and the properties distributed among the sharers. In the instant case the unregistered document is said to have allotted separately specific properties to the plaintiff and the defendant. If one of them seeks to prove by independent evidence that a particular item of property was set apart to his share, he will come up against Section 91, which interdicts proof by other evidence of the terms of a disposition of property reduced to the form of a document But proof of the fact of disposition stands outside the ban of Section 91.
31. The above observations were made by their Lordships keeping in view the decision of Rajasthan High Court Teraj v. Mohan Lal, AIR 1955 Raj. 157. Here it would be useful to re-extract the observations of the Rajasthan High Court for ready reference, as under: -
Section 91 only bars evidence in proof of the terms of the disposition if it is in writing. The fact of disposition is not a term of the disposition, and therefore Section 91 will not bar evidence to prove the fact of partition as distinct from the terms of the partition, namely the manner in which the property was actually divided between the various members of the family.
32. The Full Bench at paragraph No. 18 has further taken note of the following observations of Taylor in his law of Evidence (12th Edition) at paragraph No. 405:--
Thus, also the fact of the existence of a particular relationship may be shown by parol evidence, though the terms which govern that relationship appears to be in writing.
33. Sarkar's Evidence, 10th Edition, which is extracted in the Full Bench judgment in K. Kanna Reddy's case (supra) is worth reproduction as under: -
The existence of the fact of a contract, grant or other transaction is quite distinct from the proof of the terms of the contract, grant etc., embodied in a document, and while the latter can only be proved by production of the document (or secondary evidence in a proper case) the former i.e., the fact of the contract etc., can be proved by independent evidence of other kind. This may also come under Explanation 3".
34. Finally their Lordships having discussed various other aspects and decisions rendered by various High Courts and Privy Council held at paragraph No. 22 as under:--
In view of the foregoing, we are of the opinion that the trial Court was right in allowing other permissible evidence to be led to prove the factum of a prior partition and non-suiting the plaintiff on proof of it.
35. From the above it is clear that the factum of partition can be proved by other independent evidence, even though the deed of partition is not marked or admitted in evidence for what of registration and stamp duty.
36. On a reference, another Full Bench of this Court, consisting of five learned Judges in Muthyal Reddy's case (supra) considered the judgment of this Court in K. Kannna Reddy's case (supra) and also the judgment of the Madras High Court in Ramayya's case (supra) and elaborately discussed various aspects dealing with the combined effect of Section 49-C of the Registration Act and Section 91 of the Evidence Act. The facts of the said case reveal that the plaintiff therein who filed the suit for partition of the joint family property, averred that he and defendants 1 to 4 have continued joint and are continuing as members of a joint family, though on account of difference, they have been living in separate houses; that the plaintiff and the first defendant have each been separately enjoying portions of the joint family properties for convenience of management for the last three or four years; that the plaintiff being unwilling to remain joint with other members of the family, wanted to effect partition and to get separate possession and for that purpose issued a registered notice to the first defendant and; that the first defendant in his reply notice, set up a prior partition. The plaintiff further alleged that there was no partition as set up by the first defendant and even if there was a prior partition, it was vitiated by fraud and mis-representation and is liable to be set aside.
37. The 1st defendant therein filed written statement contending that the partition was already effected fifty years ago and that on 24-4-1951 as the parties wanted to prepare lists to denote the properties which have fallen to the share of each in the partition, three lists were drawn up and each party was given one list showing the property which had fallen to their respective shares. The lists given to the 1st defendant and the husband of the 4th defendant were produced and they marked as Exs.B18 and B-19. These two exhibits were unstamped and unregistered.
38. Since Exs.B18 and B19 were unstamped and unregistered, they were held to be inadmissible in evidence. The Full Bench finally held that oral evidence is permissible to prove the factum of partition and eventually dismissed the suit for partition.
39. Their Lordship in coming to the above conclusion had taken note of observations of the earlier Full Bench of this Court in K. Kanna Reddy's case (supra), which distinguished the Full Bench of the Madras High Court in Ramayya's case (supra). It is worth re-extracting the earlier Full Bench judgment of this Court in K. Kanna Reddy's case (supra), which was extracted at paragraph No. 32 as under:
In the instant case no attempt is made by the defendant to show that any specified item of immovable property was allotted to him in a partition between him and the plaintiff. If he had made such a claim the circumstances of the partition document being unregistered would have been an insuperable hindrance in his way. Section 91 of the Evidence Act also could not have been successfully called in aid by him because what he seeks to prove would be a term of an unregistered partition deed which comes within the words 'other disposition of property' occurring in that section. But there does not appear to be anything in the Evidence Act or in the Registration Act to prevent him from showing that there was in fact a prior partition between him and the plaintiff, and that consequently, the present suit for a fresh partition is not competent.
Further their Lordships at paragraph No. 36 observed as under:-
In the view we have taken the unregistered partition deed comprised in Exs. B18 and B19 and the other counterpart (which was not produced) though inadmissible in evidence for want of registration, can be looked into for establishing severance in status.
40. At paragraph No. 37 while considering whether the oral evidence is inadmissible by reason of Section 91 of the Evidence Act to prove even the fact of partition. Their lordships observed as under:--
It was argued on the strength of Ramratnam v. Paramanand, AIR 1946 PC 51, that notwithstanding the rejection of the partition deed as inadmissible in evidence, other evidence may be admissible to prove the details of partition. In that case the plaintiff had sued for partition but the defence was that the parties having separated previously, the plaintiff cannot maintain the suit on the basis that the properties were still joint. The two unstamped and unregistered memoranda which were produced were held inadmissible in evidence for any purpose. As such oral evidence was looked into for deciding the most important question whether partition had been effected before the institution of the suit in December, 1939.
41. In the same paragraph i.e., paragraph No. 37, their Lordships have taken note of the observations of Patanjali Sastri J., as he then was, in Sabbu Naidu v. Varadharajulu Naidu, AIR 1948 Mad. 26, which are to the following effect:-
......... the oral evidence considered by their Lordships was in support of the plea that there having been a previous partition, the suit 'in the present form', i.e., framed as one for partition did not lie. In other words, their Lordships considered the oral evidence to find out whether the fact of a partition prior to the suit was established. The discussion of the evidence also shows that they were considering it only from that point of view. As Section 91 of the Evidence Act excludes oral evidence only in proof of the terms and not of its existence as a fact of a contract, grant or other disposition of property, no reference was made to that section in the judgment nor to the Full Bench decision which related to its applicability.
42. Having considered the above aspects, their Lordships observed as follows:-
The Full Bench of this Court in K. Kanna Reddy's case, (FB) supra, also took the view that oral evidence is admissible to prove the factum of partition, though it was not admissible to prove the terms of the partition. It is, however, unnecessary to consider this question in the view we have taken that the partition deed itself is admissible to prove the severance in status and in view of the severance in status, the suit for partition on the footing that the property is still joint family property is not maintainable, and will have to be dismissed accordingly.
43. Coming to the case on hand, the specific case of the plaintiffs is that the suit properties are ancestral properties and that they are entitled to share in the property inherited by their father late Laxma Reddy and also the properties acquired with the income from the joint family properties.
44. While repelling the plaint pleadings, defendant No. 1 contended that the suit schedule properties were already partitioned in the year 1957 and since then parties are enjoying their respective shares. As already noted, along with the written statement, the defendant No. 1 attached a schedule property showing the respective shares. Except that no other document is filed to establish prior partition. Further it is important to note that in the written statement also the defendant No. 1 did not refer to any partition deed. But only in the evidence, he stated that partition was effected in the year 1957 and a deed was executed after two days. Admittedly the said partition deed was not admitted in evidence for want of stamp duty and registration. Therefore, the only course open for the defendant No. 1 was to prove the earlier partition by adducing other oral and circumstantial evidence. He also relied on other documents, which clearly shows that separate declarations were filed by plaintiffs and defendants under Land Reforms Act.
45. From the above law laid down by the Full Bench judgments of this Court in K. Kannareddy's and Muthyalareddy's cases (supra) it is clear that even though the unregistered and unstamped partition deed is not admissible in evidence, the same is admissible to the extent of proving the division of status.
46. Further as pointed out by the Full Bench of this Court in K. Kanna Reddy's case (supra), if an attempt was made by the defendant No. 1 to show that some specified item of immovable properties were allotted to him in a partition between him and other sharers relying on unregistered partition deed, certainly Section 91 of the Indian Evidence Act would come in his way, inasmuch as what he seeks to prove by such document would be a term of a unregistered partition deed, which comes within the words 'other disposition of property', which occurs in Section 91 of the Evidence Act. As already pointed by the Full Bench of this Court in K. Kanna Reddy's case, there is nothing in the Evidence Act, or under the Registration Act, which prevents the party from taking the plea that there was in fact a prior partition between him and the plaintiff and that consequently the present suit for a fresh partition is not competent by proving the earlier partition by adducing oral and other circumstantial evidence.
47. Therefore, we have no hesitation to hold that the decisions of the Full Bench of this Court in K. Kanna Reddy's and Muthyala Reddy's case (supra) holds the field and as conceded by the learned senior Counsel Sri K. Pratap Reddy, the defendant No. 1 is entitled to adduce oral and other circumstantial evidence to prove the earlier partition.
48. After going through the evidence of the trial Court, the learned single Judge held that there is overwhelming evidence on record to prove the earlier partition and accordingly decreed the suit to the extent of the properties held by late Lakshma Reddy and dismissed the suit in other respects. Hence, it is not necessary to re-extract the entire evidence once again.
49. Following the Full Bench judgments of this Court in K. Kanna Reddy's and Muthyala Reddy's cases (supra), and also basing on both and documentary evidence on record, we hold that the appeal filed by the plaintiffs in LPA No. 216/1994 is devoid of merits and hence it is liable to be dismissed.
50. Coming to LPA No. 2I5/1994, as stated above, the defendant No. 6 aggrieved by the finding with regard to upstair portion bearing Municipal No. 1-41, of item No. 1 of B schedule property, filed this LPA.
51. Defendant No. 6 is the son of brother of late Laxma Reddy i.e., father of the plaintiffs 1 and 2 and defendant No. 1 Both the Courts below concurrently held that as per the compromise decree in OS No. 445/1974, on the file of the Additional Judge, City Civil Court, Hyderabad, it is clear that there was partition between Laxma Reddy and his brothers. Further it is held that as a result of partition, the house is being exclusively enjoyed by defendant No. 1 and the same is evident from the plan Ex.B14 and the permission Ex.B20 granted by the 1st plaintiff as a Sarpanch under his own signature. Further the trial Court observed that Ex.B14 shows that the green marked area is the portion that is being enjoyed by D6 and hence it is clear that D6 can have no claim to item No. 1 of plant B schedule property. The learned single Judge further observed that when the 6th defendant has not preferred any appeal against the finding in OS No. 445/ 1974, it is not open for him now to agitate that he is entitled for the half share in the suit property.
52. From the above we are of the opinion that the defendant No. 6 is not entitled to half share in the suit property. Hence, this LPA is also liable to the dismissed.
53. In the result we pass the order as under:
54. Both the LPAs. are dismissed. No costs.