Andhra HC (Pre-Telangana)
Raghunath Pershad (Died) By Lrs. vs Janaki Bai And Ors. on 9 September, 2005
Equivalent citations: 2005(6)ALD161
JUDGMENT V. Eswaraiah, J.
1. The appellants herein are the plaintiffs and respondents are the defendants. The plaintiffs filed this appeal against the judgment and decree dated 3-9-1998 in O.S. No. 785 of 1982 on the file of the V-Senior Civil Judge, City Civil Court, Hyderabad in dismissing the suit. The parties herein are referred to as they are arrayed in the suit.
2. Heard Sri Mohd. Abdul Rafi, learned Legal Aid Counsel appearing for the appellants and Sri S. Bal Chand, learned Counsel appearing for the first respondent.
3. The suit was initially filed by Raghunath Pershad, represented by his General Power of Attorney (for short GPA) holder, his daughter-plaintiff No. 5-Kumudini Devi. During the pendency of the suit, Raghunath Pershad died, therefore, his legal heirs plaintiffs 1 to 6 his daughters and defendant No. 3 his son were brought on record. The first defendant Janaki Bai is the daughter of Raghunath Per shad's elder brother namely Prithviraj and second defendant is the tenant residing in the suit schedule property bearing No. 16-11-19, situated at Malakpet, Hyderabad. Defendants 2 and 3 did not contest the suit and remained ex parte.
4. The suit was filed for the following reliefs:
(1) To declare the Will dated 31-7-1973 executed by late Prithviraj is not valid and binding on the plaintiff; (2) To direct the defendants 1 and 2 to deliver possession of the suit house bearing No. 16-11-19, situated at Saleemnagar Colony, Malakpet, Hyderabad along with open site admeasuring Ac.2-04 guntas being half share of the plaintiff; (3) For mesne profits from the first defendant from 1969 till date and future mesne profits.
5. It is the case of the plaintiffs that Raghunath Pershad (hereinafter referred to as plaintiff) and his brother late Prithviraj were granted patta in respect of Ac.4-08 guntas in equal shares covered by Sy. Nos. 10/ 1, 10/2 and 10/3 of Teagalguda Village by late Nawab Moinuddullah Bahadur of Asman Jahi Paigah and the plaintiff and his late brother were in joint possession and occupation of the said land as co-owners. Patta was granted in the joint names of both brothers. Plaintiff constructed the suit house. Being a joint family, both plaintiff and his elder brother lived in that house using it as farmhouse for relaxation. Later, plaintiff permitted defendant No. 1 -Janaki Bai daughter of his brother Prithviraj at his request and also her husband Har Mohanlal to live in the suit house till some permanent arrangement is made for them. The first defendant with the connivance of her late father got their names entered in the Municipal Registers without the knowledge of plaintiff and he was under the impression that he and his brother only are the possessors and title holders of the property. His elder brother was paying nominal rent for the stay of his daughter in respect of the portion occupied by her. Plaintiff was staying in a small portion till 1969 and was suffering with ill-health and ultimately in or about 1972, he was completely bed ridden with a paralytic stroke. Thereafter, the plaintiff demanded payment of rents received from the Social Welfare Department, which occupied the premises from 1972 to 1977. First defendant was receiving rents on behalf of the plaintiff and his elder brother Prithviraj. The first defendant is also liable to pay the mesne profits due from 1997 till date as she was under permissive possession of the premises. The first defendant without the knowledge of the plaintiff let out the said premises to the second defendant. First defendant has no right whatsoever to deal with the property or to let out the premises to any third party without the express consent and willingness of the plaintiff. The plaintiff after a long investigation into the activities of the first defendant has come to know that the first defendant got created a will purporting to have been executed by her late father bequeathing the entire property to her. The plaintiff challenges the said will and even if the will is true, it cannot bind the plaintiff in respect of his half share in the suit schedule properties, over which Prithviraj has no right whatsoever to deal with the entire property. Late Prithviraj died in 1973. The plaintiff is entitled to the possession of half share of the suit schedule property along with the suit house constructed by him in his share of land. The will is sham and brought into existence to defeat the rights of the plaintiff and to grab the plaintiffs half share which he is legally entitled to.
6. A written statement was filed by the first defendant alone, admitting the relationship, contending that late Prithviraj alone was the exclusive owner of the suit property and it was not the joint property of Raghunath Pershad and Prithviraj. Patta was not granted for the alleged services rendered by late Raghunath Pershad and he never worked in Asman Jahi Paigah in any capacity. The plaintiff worked in Khurshed Jahi Paigah in 1939-40, whereas the patta was granted by Moinuddullah Bahadur of Asman Jahi Paigah in 1337 Fasli equivalent to 1928 A.D. The plaintiff was not employed during that period at any place. After abolition of Jagir and Paigah, the plaintiff was absorbed in Hyderabad Government service and thereafter he retired. The plaintiff never constructed a house in the suit land and has no right or there was any division as alleged by him and therefore, the construction of house in his alleged portion does not arise. Late Prithviraj was granted permission for construction of house in April, 1928 by the competent authority and late Prithviraj only made construction of the said house. The house bearing No. 16-11-19 situated at Malakpet, Hyderabad is not the joint family property and the plaintiff never resided in the said house at any time. The revenue records and accounts would show that Prithviraj alone was the exclusive owner of the property. Prithviraj was in exclusive possession as an absolute owner and he sold some portions to third parties under registered sale deeds dated 13-12-1939, 22-4-1940 and 13-12-1940, which are marked as Exs.A14, A12 and A13 respectively. The allegation that the plaintiff permitted the first defendant and her husband to reside in the suit house was denied. The allegation that the name of first defendant in collusion with her father late Prithviraj was entered in the Municipal records without the knowledge of the plaintiff was also denied and it is stated that late Prithviraj was the rightful owner of the property, who died in April, 1973. Late Prithviraj had no male issues and therefore, the first defendant alone is the exclusive owner of the suit property being the first class heir under Hindu Law and therefore, she succeeded to the property. In fact, late Prithviraj had submitted affidavit in the office of Municipal Corporation, Hyderabad, stating that he gave the property to first defendant and requested them to transfer and mutate in the name of the first defendant in Municipal records. The plaintiff was also aware that late Prithviraj was the exclusive owner of the suit property, which he has given to the first defendant. The first defendant had executed a simple registered mortgage deed dated 17-11-1962 Ex.A8 in favour of the Brahma Kshetriya (BK.) Society and obtained loan on the said document and an endorsement was made by the plaintiff stating that he had no right, title or interest over the said property. The said document was executed by the first defendant for obtaining loan for construction and repairs. Therefore, the plaintiff is estopped from disputing the ownership right of the first defendant over the suit property. The first defendant executed a fresh registered mortgage deed dated 21-7-1966 in favour of B.K. Society and obtained loan for the purpose of making construction and renovation etc. Therefore, the plaintiff has no right of any nature in the said property. The first defendant never paid any rent in respect of the portion occupied by her. In fact, the first defendant was occupying the entire property from 1955 to 1959. The said property was leased out to Education Department of the Government of Andhra Pradesh through the Controller of Accommodation, General Administration Department by late Prithviraj and he was collecting rents. When Education Department vacated the premises, the Accommodation Controller allotted the suit property to house the Backward Class Boys Hostel under the Social Welfare Department and was also paying rent to the first defendant from 4-8-1967 to 11-1-1978. At no point of time, the plaintiff disputed the said fact nor made any assertion. From 1-4-1979, the property was leased out to the second defendant and he is paying rents to her. The plaintiff never demanded the first defendant for payment of rents. The first defendant did not receive the rents on behalf of the plaintiff and Prithviraj, therefore, the plaintiff is not entitled for any mesne profits. It is further stated that the first defendant on her own right entitled to let out the premises to the second defendant from 1-4-1979. It is also stated that the will is totally irrelevant inasmuch as when the property is exclusively belonged to her late father Prithviraj and the first defendant being only the first class heir, she is entitled to succeed the suit property. The will was attested by the third defendant who is the son of late Raghunath Pershad, therefore, it is incorrect to state that the will is a created one. However, the will is not relevant in exercising the absolute rights and ownership over the said property by the first defendant.
7. Defendants 2 and 3 were set ex parte.
8. On the above pleadings, the trial Court framed the following issues:
1. Whether the plaintiff is entitled for half share in the suit property ?
2. Whether the plaintiff is entitled for mesne profits as prayed for?
3. To what relief, the plaintiff is entitled for ?
9. The following additional issue was framed by the trial Court on 3-9-1998:
Whether the will dated 31-7-1973 is true, valid and bind on the plaintiff?
10. On behalf of the plaintiffs, Raghunath Pershad was examined as PW.1 and after his death, plaintiff No. 5 was examined as PW.2 and Secretary of B.K. Co-operative Credit Society was examined as PW.3 and Exs.A1 to A50 were marked and Exs.X1 to X4 were marked through PW.3. On behalf of the defendants, the G.P.A., holder of the first defendant was examined as DW. 1 and Exs.B1 to B56 were marked.
11. The trial Court held issue Nos. l to 3 against the plaintiffs and dismissed the suit with costs of the contesting first defendant.
12. The un-disputed facts are that the suit schedule property was a grant made by Nawab Moinuddullah Bahadur of Asman Jahi Paigah for the services rendered by the ancestors of Prithviraj and his brother Raghunath Pershad. Admittedly, neither Raghunath Pershad nor Prithviraj worked in Asman Jahi Paigah. Ex.A1 dated 4th Ispandar, 1332 Fasli (dated 7-1-1923) discloses that on the application of Prithviraj and Raghunath Pershad sons of Gouri Lal of Machili-Kaman for grant of land in Teegal Guda, the Nawab considered and decided to grant patta in the name of the applicants jointly in respect of 4 acres of land for construction of house and for laying a garden free from payment. The decision taken by Nawab was accordingly informed, but, it is not known what happened for a period of 4 years upto 1927. Patta certification has not been filed by any of the parties. The next document which is available is Ex.B22 Pouthi Bie (Sisth account pass book) relating to the payment of tax in respect of the land in Sy. No. 9 and it disclose no other particulars. Payment of land tax and payment of taxes to the Municipal Corporation, Hyderabad are all in the name of Prithviraj alone as is evident from the relevant exhibits marked by both the parties. Though, it is stated that the first defendant's father obtained permission for construction of house in 1928, there is no acceptable oral or documentary evidence available and therefore, it is not known who made the structures thereon before 1962. For the first time, a simple mortgage deed Ex.B2 was executed on 17-11-1962 by the first defendant and Prithviraj to raise a loan of Rs. 4,500/- on the said house property bearing No. 16-11-19, situated at Teegal Guda, Malakpet, Hyderabad in favour of B.K. Co-operative Society Limited. Thereafter, another mortgage deed Ex.B3 was executed on 31-1-1963 to raise a further loan of Rs. 2,500/- by mortgaging the said property in addition to the earlier mortgage deed, agreeing that the loan amount will be repaid in instalments. It is also pertinent to note that out of the said grant, which was given at free of cost by Asman Jahi Paigah, portions of land, about two aeres was already sold vide sale deeds marked as Exs.A12, A13 and A14 during the year 1938-40 as admitted in the written statement and the extent of the land is roughly estimated about two acres. The plaintiff has miserably failed to establish the total property available for partition claiming the share of the plaintiff as on the date of filing of the suit. Admittedly, the property available as on the date of filing of the suit is only the house bearing No. 16-11-19, admeasuring about 4,294-00 Sq.yards as is evident from the oral and documentary evidence.
13. Insofar as additional issue is concerned, the trial Court held that the first defendant who is propounder of the will Ex.A19 dated 31-7-1973, miserably failed to establish the execution of the will and also failed to prove that it is a true and genuine document. Though the additional issue was held against the defendants, in view of the findings on issue Nos. l to 3, the first defendant being natural heir of Prithviraj, it was held that she is entitled to succeed the suit schedule property.
14. Insofar as issue Nos. l and 2 are concerned, the trial Court held that the deceased sole plaintiff was examined on commission as PW.1 and even before completing the cross-examination, he died, as such, no sanctity can be attached to the evidence of PW.1 and Exs.A1 to A7 which are marked during his chief examination. Even otherwise, the plaintiff was aged about 16 years on the date of alleged grant under Ex.A1. Ex.A1. is a mere letter and it is neither a document of title nor a document to prove the possession over the property. Ex.A1 does not disclose any survey number or boundaries or at least description of the property, therefore, it cannot be said that Ex.A1 discloses the property covered by Sy.Nos. 10/1, 10/2 and 10/3, much less the suit schedule property. PW.2 was not born at the time of Ex.A1. Therefore, it cannot be said that she had any personal knowledge about the suit property. Nobody was examined to prove Ex.A1. Even if it is true, it is a mere letter, which cannot create or confer any right to the plaintiff over the said property. Ex.A1 does not bear the seal or stamp of authority that issued the said letter. It is an admitted fact that the suit property is covered by Sy. Nos. 10/1, 10/2 and 10/3 of Teegal Guda Village. Ex.A2 letter dated 28th Mehar 1350 Fasli (corresponding English date 3-9-1941) was issued by the previous patwari of the village, to the effect that Sy . No. 10/1 admeasuring Ac.2-04 guntas and building thereon belongs to Prithviraj and Raghunath Pershad in equal shares, but Ex.A2 does not contain any date. Contents of Ex.A2 were not proved either by examining the author or any person acquainted with his handwriting and accordingly, Ex.A2 was not proved.
15. Insofar as Ex.A15 and Ex.A15(a) relating to the extract of minutes of B.K. Society furnished by the Deputy Registrar of Co-operative Society under Ex.A16 covering letter goes to show that the property was granted in the joint names of Prithviraj and Raghunath Pershad, was not given any credence on the ground that Ex.A1 was not accepted. Even otherwise, Exs.A15, A15(a) and XI are nothing but opinions and they do not in any way establish the case of the plaintiffs about their right and title. The contention of the plaintiff that the first defendant failed to establish her right and title was not accepted on the ground that the plaintiff cannot succeed on the weakness of the defendants in the absence of the proof in support of the suit claim.
16. The trial Court rightly rejected the oral evidence of DW.1. The reasons for rejecting the plaintiffs claim is only based on certain documents. Ex.B1 is the plan attached to Ex.B2 registered mortgage deed, in which, there was an endorsement of the plaintiff, stating that the plaintiff has no connection with the suit house. The contention of the plaintiff that Ex.B1 is a fabricated document was disbelieved. Exs.B24 to B35 are the demand notices issued in the name of Prithviraj-father of the first defendant alone calling upon him to pay the taxes. Exs.B6 to B14, B39 to B43 are the tax receipts from 1959 onwards paid in the name of Prithviraj by first defendant in respect of the suit schedule property and they improbablise the case of the plaintiff about the joint possession. It is the case of the plaintiff that patta was granted in joint names, but no sanction plan or permission for construction in the joint names was produced by the plaintiff. On the other hand, the first defendant produced Exs.B16 and B23 permission and sanction plan for construction of the suit schedule house, which was granted on 16-3-1961 and therefore, the house was constructed by Prithviraj-father of the first defendant alone. There is no documentary evidence to show that the plaintiff constructed the house. It was further held that the first defendant and her father Prithviraj were exercising exclusive right, title and possession over the suit schedule property and mortgaged the same under Exs.B1 to B3 (corresponding to Exs.AS to A10) to B.K. Society and obtained loan for effecting repairs to the suit house and to make additional accommodation. Mortgage of the suit property in the years 1962 and 1963 and claim of exclusive right, title and possession over the suit schedule property improbablises the case of the plaintiff about joint possession.
17. Insofar as the sale deeds executed in between 1938 and 1940 under Exs.A12 to A14 (corresponding Exs.B36 to B38), Prithviraj alone executed the sale deeds and accordingly, the contention of the plaintiff that Prithviraj sold his share of property was rejected. The trial Court held that Prithviraj alone was exercising exclusive right and title over the property of Ac.4-08 guntas and sold the said property except the suit schedule house during the year 1938-39 and the plaintiff did not raise any dispute claiming half share. Exs.B 16 to B21 and B55 are the letters addressed by the General Administration Department to the father of the first defendant with regard to the rents goes to show that the Government agency recognized the father of the first defendant alone as owner of the property. Ex.A20 is the certified copy of pahani for the year 1954-55 and all the details were not mentioned in the said pahani, therefore it was rejected. The contention of the plaintiffs that to deprive the rights of Raghunath Pershad and being elder brother and also taking advantage of his name in certain documents, Prithviraj addressed letters to the Municipal Corporation, requesting to transfer the suit property in the name of first defendant in 1962 and thereafter executed a will, goes to show the dishonest intention of Prithviraj and first defendant, was not accepted on the ground that those documents are immaterial as they will not establish any right, title or possession of the deceased plaintiff. On appreciation of the documentary evidence, the trial Court came to the conclusion that the deceased plaintiff never exercised the right of ownership and possession was with Prithviraj alone and therefore, the plaintiff is not entitled for partition. On the other hand, the first defendant and his father are found to be in possession of the suit schedule properly and that the plaintiff had no better title than the first defendant, therefore, the plaintiff is not entitled either for partition or for recovery of possession or any mesne profits.
18. The questions that arise for consideration are:
(1) Whether the entire oral and documentary evidence of PW.1 can be excluded from consideration; (2) Whether the plaintiff was able to prove grant of patta in the joint names of Raghunath Pershad and Prithviraj; (3) Whether the plaintiffs are entitled for partition and for any mesne profits.
19. Insofar as the evidence of PW.1 is concerned, his chief examination was commenced in February, 1988 and was completed on 27-3-1988. He was cross-examined on 17-4-1988, 23-4-1988, 16-6-1988 and 23-6-1990 and adjourned to 30-6-1990. Therefore, there cannot be any dispute that the cross-examination in respect of covering the points insofar as chief examination are concerned, it cannot be excluded, but, the chief examination insofar as that part which has not been cross-examined cannot be taken into consideration or relied upon.
20. PW.1 stated that the patta in respect of Sy. Nos. 10/1, 10/2 and 10/3 of Teegal Guda Village was given in the names of himself and his brother jointly i.e., Ac.2-04 guntas for himself and Ac.204 guntas for his brother Prithviraj. It was in possession of both of them and the suit house was used as joint family property of both the brothers. First defendant and her husband were permitted to reside therein temporarily till they make permanent arrangement for a period of two years. His brother Prithviraj used to collect rents from the Social Welfare Department and used to pay the same for instalments of the mortgage loan. PW.1 claimed the entire suit property as his share and stated that his brother has no right over the said property. The first defendant claiming ownership on a false flimsy and sham will and even otherwise, his brother has no right to execute the will. His brother expired on 14-4-1973. Ex.A1 is the letter from Syed All Raza, Secretary of Nawab Moinuddullah and as per the said letter, the land was given to him and his brother. Ex.A2 is the letter from the Patwari certifying that revenue amounting to Rs. 11.14 annas is fixed for the suit land and Ex.A3 is the notice issued by the Tahsildar Taluk Shamshabad Paigah for payment of revenue and he paid the said revenue. He further stated that he gave general power of attorney to his daughter Kumudini-plaintiff No. 5 to look after the case. In the cross- examination, PW.1 stated that he was employed in Khurshid Jahi Paigah from 1942 onwards, thereafter, he joined the Government Service. The signatures on Ex.B1 belong to him. He and his elder brother Prithviraj constitute a joint family and the joint family owned and possessed the movable and immovable properties. The joint family properties are: Garden at Shamshabad admeasuring Ac.4-16 guntas; Bhigan Bagh at Shaikpet Village; 1/4th house at Machili Kaman; Ac.4-08 guntas of land at Teegalguda and out of which, Ac.2-04 guntas belong to him and Ac.2-04 guntas belong to his late brother Prithviraj. He further stated that sometimes, they used to eat jointly and some times separately. He resided in the house at Etebar Chowk till 1964. His brother was employed in Khurshid-Jahi-Paigah. Defendant No. 2 is the tenant for the last five to six years and defendant No. 1 was collecting rents. Asmanjahi Paigah granted patta in the names of himself and his brother jointly in the year 1332 Fasli. His claim in the present suit is Ac.2-04 guntas with a residential house. He know about B.K. Society and the said Society used to advance loans for construction of houses, marriages and other purposes. He never applied for the loan for construction of the house in the said society. He does not know whether Prithviraj and his daughter applied for any loan for construction of the suit house to the society. When the Counsel appearing for the first defendant showed the plan and asked whether the plan relates to the suit house, then he stated that he lost his eyesight. The said B.K. Society was converted into Bank and at one stage, one Manik Lal Wagray was the legal advisor of the said bank and with his permission and consent on two or three occasions, loans were obtained by Prithviraj and first defendant (Janaki Bat) by mortgaging the suit property with the said bank. The loan transaction was commenced in June, 1962. The loan obtained under the mortgage was discharged long back. He did not make any endorsement on the plan annexed to the mortgage deed, which is marked as Ex.B1 except putting his signature. He never made any endorsement on Ex.B1 to the effect that he has no concern with the property mortgaged with the bank and the appurtenant land. Therefore, the deposition of PW.1 in respect of the admissions made in the cross-examination cannot be excluded. As per the oral evidence of PW.1, he categorically stated that the suit schedule property was a patta granted jointly in his name and in the name of Prithviraj-father of the first defendant. The said property was mortgaged for the purpose of raising loan and it was let out and rents were being collected by Prithviraj and he used to collect rents and pay the same towards instalments of mortgage loan. Though PW.1 admitted his signatures on Ex.B1 plan, but he denied the endorsements said to have been made by him.
21. PW.2 is daughter of the plaintiff Raghunath Pershad. She stated that her father executed GPA, in her favour to conduct the proceedings in this case. Her father and father of the first defendant are brothers and they are joint owners of Ac.4-08 guntas of land in Sy. Nos. 10/1, 10/2 and 10/3 of Teegalguda Village. The said property was originally belonged to Nawab Moinuddullah Bahadur of Asman Jahi Paigah. The said property was in joint possession of the plaintiff and his brother Prithviraj and it was the grant given in appreciation of services rendered by her father to the Nawab. Patta was granted in both their names. In a portion of the suit property, her father constructed the suit house. Her father permitted defendant No. 1 to reside in a portion of the suit house from 1955 to 1958 and in other portion her brother Raghunath Pershad-defendant No. 3 was running his office. Her father suffered with paralatic stroke in 1972. The suit house was let out to the Government School and later to the Social Welfare Department. She came to know in 1979 that defendant No. 1 got her name mutated in the Municipal records without the knowledge of her father, though her father and Prithviraj are joint owners of the property. It is her case that her father alone is the sole owner of the suit house which was let out to the school and later to the Social Welfare Department from 1967 to 1978. Exs.AS and A10 are the mortgage deeds executed by Prithviraj and defendant No. 1 in favour of B.K. Society. Defendant No. 1 and her father have no right or title to execute Exs.AS to All. Father of Defendant No. 1 sold away part of the suit schedule property by executing registered sale deeds under Exs.A12 to A14. Ex.A15 is the extract of Minutes of B.K. Society. Ex.A15(a) relevant extract shows that the patta was being granted in the names of Prithviraj and Raghunath Pershad. Father of defendant No. 1 died on 14-4-1973 and Ex.A17 is his death certificate. Ex.A15 is the sketch plan of the suit schedule property. Ex.A19 is the will executed by Prithviraj in favour of defendant No. 1 to avoid partition of the suit property. Her father did not make any written application to B.K. Society stating that he has no right or title in the suit property. Ex.A20 is the certified copy of pahani for the year 1954-55 issued by the Tahsil Office, which is in torned condition. Ex.A24 is the letter issued by the Deputy Director, Survey and Land Records, stating that the Town Survey Records, Sethwar and Vasulbaki are not available in their office records. Ex.A25 is the letter issued by the Asst. Director of Central Survey and Ex.A26 is the memo issued by the Tahsildar, stating that prior to 1950 records are not available for issuing pahanies. In the cross-examination, she stated that Ex.B16 is the permission granted by the Municipal Corporation, Hyderabad obtained by Prithviraj for making additions. She further stated that Ex.A1 was issued from the office of Asman Jahi Paigah and Ex.A3 was issued by Tahsil Office. The suggestion that Ex.A3 was issued only in the name of Prithviraj Pershad as pattedar was denied. Father of defendant No. 1 was known only as Prithviraj and not as Prithviraj Pershad, but in Ex.A2 his name was described as Prithviraj Pershad, Seshridar. Exs.B1V to B21 refer to the suit house. At the time of death of Raghunath Pershad, he was aged 90 years. Her father had no knowledge about the three sale deeds executed by his brother Prithviraj, selling part and parcel of the suit land, which was a part of patta given by Asman Jahi Paigah in the joint names. The suggestion of defendant No. 1 that in Ex.B1 plan, Ex.B2 endorsement was made by her father on the objection raised by B.K. Society in order to release the amount in view of the previous litigation was denied. Ex.B1 bears the signature of her father.
22. PW.3, who is working as Secretary of B.K. Society since 4 years to his deposition on 21-3-1997, stated that his daughter was offered to be given in marriage to the younger son of defendant No. 1. He knows the husband of defendant No. 1. He denied the suggestion that he deliberately and intentionally suppressed the records and not produced the records at the instance of defendant No. 1. He cannot say whether Ex.X1 is the opinion given by the legal advisor of B.K. Society. Ex.X2 is another letter dated 31-1-1962 addressed by the society to its legal advisor in respect of the mortgage loan to defendant No. 1. Ex.X4 is the application dated 29-10-1962 made by defendant No. 1 to the B.K. Society. After repayment of the loan, the society will give back the documents. The endorsement and signature found on Ex.B1 belong the plaintiff. He was not working in the society at the time of return of Ex.B1. He got personal knowledge about the writing and signature of plaintiff No. 1.
23. DW. 1 is the only witness examined on behalf of the defendants, who is the son of defendant No. 1 and examined on her behalf as her G.P.A., holder. He stated that Ex.B33 is the permission granted by Tahsil Office to his grandfather for manufacturing bricks. Ex.B34 is the representation given by defendant No. 1 and his grandfather to the Tahsildar for reduction of tax and correction of land area. Certain documents have been marked in proof of payment of tax and Municipal receipts in respect of the suit schedule house. His father, mother, brothers and sisters stayed in the suit property upto 1960. There was a dacoity in the house, in which his father injured and his brother's left hand was fractured and broken and therefore, his father vacated the suit house and shifted to Etibar Chowk. Since the house was fell vacant, the Controller of Accommodation notified and the suit property and allotted for the use by Director of Public Instructions. It was allotted to the Government High School, Malakpet for providing accommodation for running a school. Initially, they were paying rent of Rs. 200/- per month and as the school authorities desired to have additional accommodation, they have provided the same. Mutation was made in the name of his mother in the Municipal records in the year 1962. Electricity connection was taken in the name of Prithviraj in or about 1958. Ex.B1 is the plan attached to the mortgage deed. Ex.B2 is the registered mortgage deed dated 17-11-1962. Prithviraj previously obtained loan from B.K. Society on the basis of mortgage of Ethibar Chowk property and in respect of the said transaction, a decree was passed against Prithviraj. Originally, the property situated at Ethibar Chowk was jointly owned by plaintiff and Prithviraj. After the decree was passed in that transaction, the plaintiff raised an objection in the Court in respect of his share in that property. Because of the previous dispute, before disbursing the loan under the mortgage deed Ex.B2, the society wanted to make sure that the suit property is exclusively belong to Prithviraj and they made enquiries to find out whether Raghunath Pershad is claiming any share. The society obtained opinion of the legal advisor and Exs.X2 to X4 are the relevant papers in that regard produced by the society. The society obtained the endorsement of Raghunath Pershad after the documents were executed and registered. The two endorsements and signatures thereunder are in the handwriting of Raghunath Pershad on Ex.B2. On the very same property, again loan was raised as additional amount was required and Ex.B3 dated 31-1-1963 was executed by Prithviraj and his mother Janakibai in favour of B.K. Society. Exs.B1 to B3 bears the signatures of Prithviraj and Janakibai. He or his brother used to collect the cheques every month for Rs. 344/-. His mother spent Rs. 1,07,000/- for renovation work and thereafter, the building was let out to the second defendant. He was not aware, whether Prithviraj was also called as Prithviraj Pershad. In 1337 Fasli patta of the suit land was granted in favour of Prithviraj by Asman Jahi Paigah. He has no idea whether the grant of patta was oral or written. He has not seen any document of grant of patta in favour of Prithviraj. During the lifetime of Prithviraj, defendant No. 1 became owner of the suit schedule property. Except the mutation certificate issued by M.C.H. and personal affidavit of Prithviraj, there is no other registered document to show that the suit schedule properties are transferred in the name of defendant No. 1. He has no idea about the nature of the document (affidavit dated 8-6-1962) marked as Ex.B4 filed before the M.C.H., transferring the rights in the suit schedule property in favour of defendant No. 1, wherein it is stated that consideration of Rs. 25,000/- was paid, but no payment was made, though it is mentioned in Ex.B4. He did not file any proof to show that the electricity connection was in the name of Prithviraj in 1958. Endorsement on Ex.B1 was made on 7-11-1962 and mortgage deed was registered on 17-11-1962. Ex.B1 also bears his signature, but he has not signed before the registering authority. He signed as a witness on Ex.B1 at the instance of the society. He does not know in whose presence, the plaintiff signed on Ex.B1. He cannot comment on the contents of Ex.Xl because it is a legal opinion sought by the society. Except Ex.B22 Pouthi Book and Ex.B46 pahani, he has not filed any other documents to show how the suit property was conferred on Prithviraj. Defendant No. 1 being the sole heir of Prithviraj and by virtue of mutation and by virtue of will deed, she became the owner of the suit property. The suggestion that originally patta was granted in the name of Prithviraj and Raghunath Pershad was denied.
24. I have scanned the oral and documentary evidence. PW.1 stated that Ex.A1 is the intimation communicated to him and Prithviraj, stating that their request for grant of land at Teegalguda Village was considered and thereafter patta was granted. Ex.A2 is the certificate issued by the patwari, stating that patta was granted in their joint names. It is also stated that though the signatures on the plan attached to the mortgage deed belong to him, but he did not made any endorsement stating that he has no right or title over suit property. In fact no such endorsement is there in the registered plan of the Sub-Registrar. Thus, it is the case of the plaintiffs that the suit schedule property is the patta land granted by Asman Jahi Paigah jointly in the names of the plaintiff and his brother Prithviraj and Prithviraj sold away part of the land and the remaining land belongs to him. Though PW.2-the G.P.A., holder of the plaintiff stated that Raghunath Pershad alone constructed the house, but there is no evidence whatsoever to prove the said contention and on the other hand, the mortgage deeds executed in favour of B.K. Society goes to show that loan was sanctioned on the application of defendant No. 1 and her father and with the said loan amount, additions were made and thereafter, it was let out. Insofar as the evidence of PW.3 is concerned, his deposition that he recognized the signature of PW.1 and the endorsement on the mortgage plan belongs to Raghunath Pershad, cannot be believed in view of the specific statement of PW.1 himself that writing of endorsement is not made by him and he only stated that the signatures belong to him. In fact, no such endorsement is available in the copy of the plan kept in the Sub-Registrar. Insofar as the evidence of DW.1 is concerned, the trial Court rightly rejected his evidence as he cannot speak the facts which he do not know prior to executing the G.P.A., and he cannot step into the shoe of defendant No. 1 or Prithviraj. Therefore, the trial Court rightly rejected his oral evidence.
25. Ex.A1 is the letter dated 7-1-1923, which is an old document and the genuineness and otherwise of the said document is not at disputed by the defendants. Ex.A1 is letter No. 205 dated 4th Isfandar 1332 Fasli (7-1-1923) from Syed Ali Riaz, Secretary Peshi Paigah Nawab Moinuddullah to Raghunath Pershad son of Gouri Lal. The application of Prithviraj and Raghunath Pershad sons of Gourilal of Machilikaman for grant of land in Teegalguda was placed before Nawab Sahib and in appreciation of the loyal services rendered by their ancestors, Nawab was pleased to grant equally in the names of Pruthviraj and Raghunath Pershad an extent of Ac.4-00 of land for construction of a house and laying a garden free from payment. Further on submission of Sri Digamber Pershad care taker of Mahalat Mubarak and in consideration of late Rai Saheb's association with paigah, orders are issued to inform them accordingly. Ex.A2 is the certificate issued by the Ex-patwari of Malakpet, stating that Sy. No. 10/1 admeasuring Ac.2-04 guntas, revenue of which was Rs. 11.14 annas was fixed in 1363 Fasli. A building is located on the site and the share of each brother Pruthviraj and Raghunath Pershad is fixed equally 50-50 basis. Ex.X3 is the notice from the office of the Tahsil Taluka Shamshabad Paigah No. 6488, dated 28 Mehar 1350 Fasli (dated 3-9-1941) addressed to Prithviraj Pershad Saheb, Pattedar, Sirastadar, Jamat Sarfikhas. The said notice relates to the collection of revenue in respect of Mosa Rayamand Village for Rs. 124.13 annas outstanding against him and he was requested to pay the dues. Ex.A4 is the legal notice got issued by Raghunath Pershad stating that the suit house with open land of Ac.4-0 8 guntas was joint patta held by Raghunath Pershad and Prithviraj and the said notice was issued to defendant No. 1 requesting her to hand over possession of the same to PW.2-GPA holder of Raghunath Pershad. Exs.AS, A10 and All are the mortgage deeds dated 17-11-1962, 13-1-1963 and 21-7-1966 respectively. Ex.A9 is the plan annexed to Ex.A.8, wherein no such endorsement as in Ex.B1 is found. Exs.A12 to A14 are the sale deeds executed by Prithviraj from out of the patta land. Ex.A15 is the extract of minutes dated 14-11-1962 of B.K. Society, wherein, it has been stated that defendant No. 1 applied for second mortgage loan of Rs. 2,500/- on the same property, which was previously mortgaged and obtained a loan of Rs. 4,500/- on 17-11-1962. Defendant No. 1 filed the application and produced a letter from the Municipal Corporation dated 16-6-1962 showing the change of her name in respect of the house, which is being mortgaged and the said letter was taken on file. There is an endorsement in the minutes, which is extracted as follows:
"The property situated at Tigalguda, Malakpet is constructed on land which has been sanctioned in the joint name of Shri Prethiviraj and Shri Raghunath Pershad. Please see letter No. 1522/23. dated 9th Farwardi 1337 F. This is also placed in the file".
The said minutes was marked as Ex.A15(a). 1337 Fasli relates to the year 1928. It is further stated that Pruthivraj has produced the plan whereon Shri Raghunath Pershad made an endorsement claiming no share on the land and the property that is being mortgaged. The legal advisor drafted the mortgage deed to be executed jointly by Pruthviraj and Janakibai. Ex.A20 is the Kasra Pahani patrika of Teegalguda Village for the year 1954-55 issued on the application of Raghunath Pershad on 4-4-1979, wherein, it was stated that Pruthviraj is the Kabzadar and possessor and nature of possession is patta. In the note, it is stated that Cols.1 to 12 relating to survey number, extent, revenue, nature of land, patta or inam or Government land, name of the pattedar, nature of irrigation etc., are in torned condition, hence an endorsement was made, stating that particulars cannot be furnished. Ex.A24 is memo issued by the Deputy Director of Survey and Land Records dated 13-4-1989 on the application filed by PW.2 GPA holder of Raghunath Pershad, informing her that the name of the pattedar as stated by the GPA holder is not found recorded in the town survey records and as such, its copies cannot be issued; and that the copies of Sethwar and Wasool Baki cannot be issued as the records have been outdated after coming into force the town survey record. Ex.A25 is the memo dated 24-2-1979 issued by the Asst. Director of Central Survey Office, Hyderabad, informing Raghunath Pershad that the "dry portion" of the village map of Teegalguda, Hyderabad Urban Taluk is not available in the office, hence issue of Tounch Plan for Sy. No. 10/1 was not possible. Ex.A26 is the memo dated 25-5-1982 issued by the Tahsildar, Charminar Taluk on the application filed by Raghunath Pershad, stating that the pahanies of Teegalguda Village prior to 1950 are not available in the office. Ex.A31 is a Public Notice got issued by Raghunath Pershad published in Urdu News Paper informing the general public that the first defendant has no right to sell the suit property and requesting them not to purchase the suit property.
26. Ex.Xl is the legal opinion obtained by B.K. Society on the application filed by defendant No. 1 for grant of loan. It is stated that Pruthviraj admitted transferring the property in the name of his daughter Janakibai @ Rupa Saz-defendant No. 1 and mutation was effected in M.C.H., and he applied for transfer of rent deed in the name of Janakibai. It is stated that the previous opinion dated 1-11-1962 holds good and insofar as the non member being a mortgagor with members is concerned, it is stated that a member is being given the loan and there is no restriction of making a non-member as joint debtor in the bye laws. Hence Pruthviraj was made as joint debtor in the interest of the Bank and in the spirit of helping the members. It is further stated that Raghunath Pershad himself stated that he has no concern with the property, hence his name in the letter granting patta be deemed as benami. Accordingly, he opined that there is no objection for the bank to obtain the mortgage deed. Ex.X2 is the opinion of the legal advisor dated 31-10-1962, stating that the land belongs to Pruthviraj was transferred in the name of his daughter and her name was also mutated in MCH records and he has no objection for grant of loan. Ex.X4 is the application dated 29-10-1962 filed by Janakibai @ Rupabai-defendant No. 1 before the Secretary, B.K. Society, stating that the house was given to her by her father Pruthviraj and her name was also mutated in MCH records and she asked Rs. 2,500/- for further construction to have additional accommodation to give it on rent to the Government School.
27. Ex.B1 is the plan attached to the mortgage deed. Ex.B2 is the mortgage deed dated 17-11-1962 executed by defendant No. 1 and her father in favour of B.K. Society, for sanction of loan of Rs. 4,500/- Ex.B3 is the simple mortgage deed dated 31-1-1963 executed by defendant No. 1 and her father Pruthviraj for sanction of a loan of Rs. 2,500/- Ex.B4 is the mutation extract showing the consideration towards transfer of property in favour of defendant No. 1 by her father was Rs. 25,000/-. Ex.B5 is the letter dated 16-6-1962 issued by the Municipal Corporation, transferring the property in the name of Janakibai-defendant No. 1 on the application of Pruthviraj. Ex.B22 is Pouthi Bahi (patta account pass book) issued in favour of Pruthviraj. Exs.B24 to B35 are the letters issued from the Tahsil Office for payment of land revenue etc. Exs.B36 to B38 are the sale deeds executed by Prithviraj. Exs.B39 to B45 are the tax receipts issued by the Municipal Corporation, Hyderabad.
28. The aforesaid oral and documentary evidence goes to show that PW.1 Raghunath Pershad was extensively cross-examined on the relevant issues. Therefore, his chief examination, which is covered by the cross-examination can be taken into consideration and can be relied upon insofar as it is not rebutted or disproved. Even though PW.2 who is the G.P.A., holder of Raghunath Pershad has no personal knowledge of certain previous records, but she is entitled to speak in respect of the facts, she being the daughter of the plaintiff insofar as the facts in her personal knowledge. As per Ex.A1 coupled with Ex.A15(a) goes to show that joint patta was granted in favour of Pruthviraj and Raghunath Pershad vide letter No. 1522/23, dated 9th Farwardi, 1337 Fasli (English year 1928) and the said letter was also placed in B.K. Society file, but the said letter was not produced before the Court. Therefore, Exs.A1 and A15 goes to show that it was joint patta granted in favour of Pruthviraj and Raghunath Pershad. Though all other correspondence and record shows the name of Pruthviraj alone and at some places Pruthviraj Pershad was shown and Pruthviraj being the elder and obviously, the first name has been mentioned and even by mere mentioning the elder brother's name, I am of the opinion that Raghunath Pershad who is having joint right and title over half extent of the land will not loose his right. Merely because Raghunath Per shad's name is not reflected in the subsequent records, it cannot be said that Raghunath Pershad is not the joint owner as the patta admittedly granted in both the names as per Ex.A15(a).
29. Admittedly, Pruthviraj sold properties in 1938-39 from out of the suit schedule land and merely because Pruthviraj sold some of the property, it cannot be said that Raghunath Pershad will loose his rights in the existing suit house. It is the case of the plaintiff that Pruthviraj has sold his share of land and the entire remaining land belongs to him. But, the said contention of the plaintiff cannot be accepted as he has not objected for receipt of rents by Pruthviraj and his daughter-Janakibai-first defendant from the Government Departments and repayment of mortgage loan. Ex.A1 letter coupled with Ex.A15(a) clearly show that patta was granted jointly in the names of Pruthviraj and Raghunath Pershad. Though Pouthi bahi account stands in the name of Pruthviraj with regard to the revenue payments and other demand notices, I am of the opinion that the younger brother will not loose his right in the suit schedule land. Admittedly, the original records are not available as per the endorsements made by the concerned departments except the relevant documents Exs.A1 and A15(a). Pruthviraj and his daughter defendant No. 1 filed the original letter granting patta before B.K. Society. Neither B.K. Society filed the original letter granting patta nor the defendants filed the said letter before the Court. Therefore, I am of the opinion that the plaintiffs were able to substantiate their claim as per Ex.A15(a) that patta was granted in the joint names of Pruthviraj and Raghunath Pershad. Raghunath Pershad clearly stated that though the signature on the mortgage plan belongs to him, but the endorsement does not belong to him, therefore, the deposition of PW.3 that he recognizes the writing of Raghunath Pershad cannot be believed in the absence of any expert opinion. Even otherwise by mere endorsement, Raghunath Pershad will not loose his right, title and interest in the suit schedule property as no immovable property can be transferred unless the document is reduced into writing on the required stamp and registered. Merely because he admitted his signature and as there was no explanation for what purpose he put his signatures, it cannot be said that he has given up his right and title in the suit schedule property in favour of Pruthviraj or defendant No. 1. Admittedly, such an endorsement in the plan copy of the Sub-Registrar is not available. Admittedly, Janakibai alone was the member of B.K. Society and therefore to facilitate her to obtain loan, the property was mortgaged, construction and additions were made, and it was let out to the Government Department and the loan amount was also repaid. The way in which Pruthviraj filed letters before the Municipal Corporation, Hyderabad to transfer the property to mutate the name of his daughter in the records of Municipal Corporation, Hyderabad and executed a will also goes to show that they have made attempts from the beginning to deprive the right of Raghunath Pershad over the suit schedule property. Therefore, the trial Court rightly held that the will is of no consequence and the deposition of DW.1 is also cannot be relied upon as he cannot speak the facts stepping into the shoe of the defendants.
30. Though Raghunath Pershad contended that he has constructed the house, but there is no evidence available on record to show that he has constructed the suit schedule house. But, on the other hand, the records goes to show that by mortgaging the suit schedule property in favour of B.K. Society, the suit house was constructed and repaid the loan amount by collecting the rents. Pruthviraj died in 1973. Merely because, defendant No. 3 who is son of Raghunath Pershad is not supporting the plaintiffs and he remained silent, it cannot be said that the property do not belong to joint family of Pruthviraj and Raghunath Pershad. The contention of the defendants that there was a dispute with regard to the mortgage of Ethebar Chowk property and therefore to make sure that there is no litigation in respect of the suit schedule property, at the instance of the B.K. Society, the said endorsement was obtained, cannot be accepted as the minutes of the B.K. Society themselves clearly show that the suit schedule property is in the joint names of Pruthviraj and Raghunath Pershad as per the contents of the letter mentioned in Ex.A15(a).
31. The learned Counsel appearing for the respondents submits that having made an endorsement and having kept silent without claiming the property, Raghunath Pershad and plaintiffs are estopped from claiming right, title and interest over the suit schedule property. In support of his contention, he relied on the judgments in the cases of Sailala v. Smt. Ngurtaiveli, AIR 1980 Oau. 70, and Martin Cashin and Ors. v. Peter J. Cashin, AIR 1938 PC 103, contending that Section 115 of Evidence Act becomes applicable and the principles of doctrine of estoppel by acquisance comes into play. It is stated that there is no plea of fraud, misrepresentation or undue influence at any time for any purpose whatsoever. Therefore, it cannot be said that the said endorsement on Ex.B1 was obtained by fraud, misrepresentation or undue influence. If that be so, the plaintiffs are estopped from claiming any right and title.
32. It is further stated that as per the evidence available on record, the first defendant and her husband stayed in the suit property from 1954 to 1959 and son of the plaintiff-defendant No. 3 was using the rear portion of the suit property for his office during the period of construction and after construction, he left the place and thereafter, the property was notified by the Accommodation Controller and allotted to Education Department for running a school from 1961 to 1967 and thereafter, it was allotted for running a backward class boys hostel of Social Welfare Department from 1967 to 1977. In 1979, the property was let out to the second defendant. It is stated that Raghunath Pershad was never in possession of the suit property and therefore, he is not entitle for partition of any portion of the property.
33. On the other hand, the learned Counsel for the plaintiffs submitted that possession of co-owner is also possession of the other owner. In the case of Balwant Singh and Anr. etc. v. Daulat Singh (died) by LRs. and Ors., , the Supreme Court held that mutation entries will not convey or extinguish title in the property. Merely because mutation of defendant No. 1 name was made in the Municipal records, the right of the plaintiff cannot be extinguished in the property as there is no basis for mutating the name of the first defendant when the property was a grant of patta in the name of the plaintiff and Pruthviraj. Therefore, Pruthviraj cannot convey the title in favour of defendant No. 1 by merely filing an affidavit or application in the Municipality or by executing a will without having exclusive right and title. Neither of the parties are able to file any records relating to Andhra Pradesh (Telangana Area) Record of Rights in Land Regulation of 1358 Fasli and therefore, there is no admitted evidence to show that the name of Pruthviraj alone was entered in the Record of Rights ousting the right and title of Raghunath Pershad.
34. In the case of Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd., and Ors., , the Supreme Court held that the Power of Attorney Holder cannot depose in place and instead of principal. Therefore even excluding the deposition of PW.2 and DW.1, the evidence of PW.1 and the documentary evidence goes to show that the land was granted in the joint names of Pruthviraj and Raghunath Pershad, therefore, both of them are having equal right and title in the suit schedule property. It is true that the General Power of Attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff or on behalf of the defendant in the capacity of the defendant, but in the instant case, PW.1 who is the original plaintiff was substantially cross-examined and PW.2 is also entitled to speak the facts which are in her personal knowledge. But, insofar as DW.1 is concerned, the trial Court rightly rejected his evidence.
35. Insofar as the joint possession is concerned, I am of the opinion that there cannot be any plea of adverse possession as the possession of one co-sharer shall be deemed to be in possession of the property on behalf of the other sharer unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharer was denied. This Court in the case of Gaddam Chinna Dodamma v. Goka Pedda Dodamma and Anr., , held that unless there is sufficient proof of ouster of a sharer from joint property, he continues to have constructive possession, even though the other sharer is in physical possession of the same. Possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying other co-sharers and mutation in the revenue records in the name of one co-sharer would also not amount to ouster unless there is a clear declaration that title of the other co-sharer is denied.
36. In the case of Karbalai Begum v. Mohd. Sayeed and Anr., , the Supreme Court held that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. The co-sharer in possession would become constructive trustee on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee.
37. In the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, , the Supreme Court held that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by tine co-heir in possession who claims his possession to be adverse should be made out. The possession of one co-heir is considered in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other as to constitute ouster.
38. In view of the aforesaid oral and documentary evidence particularly Exs.A1 and A15(a), there is a clear evidence to show that joint patta was granted in favour of Pruthviraj and Raghunath Pershad and both of them are entitled for equal shares in the suit schedule property. The trial Court without any justification erroneously held that Exs.A1 to A3, A15, A15(a) and XI did not establish the case of the plaintiffs about their right and title without any appreciation of documentary evidence. In fact, the endorsement on Ex.B1 plan is not proved. I am of the opinion that the said documents relied on by the plaintiffs clearly established the plaintiffs' right and title over the suit schedule property. The trial Court held that the will is of no consequence and the manner and method in which Pruthviraj and defendant No. 1 have been making attempts to mutate the property in the name of defendant No. 1 in the Municipal records goes to show their intention to deprive the right of the plaintiff in the property. Except the plaintiffs signature on Ex.B1, the defendants did not adduce any other evidence to show the endorsement made on Ex.B1 is that of the plaintiff. The said endorsement is not proved. Even assuming that the plaintiff has got knowledge about the deposit of title deeds for obtaining loan, I am of the opinion that the plaintiff will not loose his right and title over the suit schedule property.
39. Though the plaintiff has claimed delivery of possession of the suit schedule property along with the open site admeasuring Ac.2-04 guntas being the half share of the plaintiff that is to say the entire suit schedule property by the plaintiff and also the mesne profits, I am of the opinion that the plaintiffs are not entitled for the entire suit schedule property as except the suit house bearing No. 16-11-19, Malakpet, Hyderabad, the remaining property was already sold away long back by Pruthviraj and there was no any objection by the plaintiff and therefore, the plaintiffs are entitled for half share in the existing property alone, which was let out to defendant No. 2. The plaintiffs are also not entitled for mesne profits prior to filing of the suit The plaintiffs are entitled for half of the mesne profits over the existing suit schedule property only from the date of filing of the suit till the final decree is passed.
40. Accordingly, the appeal is allowed in part, setting aside the judgment and decree of the trial Court and the suit is preliminarily decreed, holding that Pruthviraj and Raghunath Per shad are joint owners of the existing suit schedule house property admeasuring about 4,294 Sq.yards. The plaintiffs and defendant No. 3 are entitled to equal shares in the half share of the said property and defendant No. 1 is entitled to half share in the existing suit property. The plaintiffs and defendant No. 3 are also entitled to equal shares in the half of the mesne profits in respect of the existing suit schedule property let out to defendant No. 2 from the date of filing of the suit. No order as to costs.
41. I appreciate for the good assistance rendered by Mr. S. Balchand, Counsel for the first respondent; and Mr. Mohd. Abdul Raft, Legal Aid Counsel appeared on behalf of the appellants who has equally argued and assisted well for several days and therefore, the Advocate fee payable to him by the Legal Services Authority is fixed at Rs. 5,000/- (Rupees five thousand only).