Telangana High Court
Chiluka Dattareya vs Chiluka Siddiram on 7 February, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr.JUSTICE G.RADHA RANI
SECOND APPEAL No.19 of 2006
JUDGMENT:
This Second Appeal is filed by the appellant No.1-plaintiff aggrieved by the judgment and decree dated 27.10.2005 in A.S. No.7 of 2002 passed by the Senior Civil Judge, Siricilla, reversing the judgment and decree dated 25.07.2002 in O.S No.17 of 1997 by the Junior Civil Judge, Siricilla.
2. For the sake of convenience, the parties are hereinafter referred as arrayed before the trial court as 'plaintiff' and 'defendants'.
3. As per the averments in the plaint, the plaintiff and the defendant No.1 were natural brothers and the defendant No.2 was the son of their elder brother Narayana, defendant No.3 was the wife of Narayana and defendant No.4 was the wife of defendant No.1. After the death of their father Rajanna, their elder brother Narayana became the Kartha of the Hindu Joint Family consisting of late Narayana, plaintiff and defendant No.1. The plaintiff and the defendants were Hindus governed by Mithakshara School of Hindu Law. Late Narayana, plaintiff and defendant No.1 jointly purchased an extent of Acs.2.35 gts., of land in survey 2 Dr.GRR,J SA No.19 of 2006 No.809/B of Siricilla village in the name of late Narayana from one Pulluri Rajesham, 40 years ago. After the said purchase, Pulluri Rajesham denied the title and possession of late Narayana, plaintiff and defendant No.1 over the suit schedule property. As such, they filed a suit in the name of late Narayana as he was the Kartha of the joint family vide O.S. No.50 of 1966 on the file of the District Munsiff, Siricilla. Pulluri Rajesham filed written statement admitting the suit claim. The suit was decreed and the name of Narayana was recorded in the revenue records as per the decree. But, late Narayana, plaintiff and defendant No.1 were in joint possession with equal shares till the death of late Narayana. They were also having joint family properties i.e. House No.8-4-51 and the suit land. Late Narayana, plaintiff and defendant No.1 orally partitioned the house bearing No.8-4-51, which was in the name of late Rajanna, but kept aside the suit land in their joint possession. Thereafter, late Narayana got entered his name in the possessory column of the pahani. The plaintiff and defendant No.1 questioned about the wrong entries in the pahani and got corrected and entered their names in the pahani for the year 1992-93 in respect of the suit land. The plaintiff demanded for partition and for allotment of 1/3rd share in the suit land.
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Dr.GRR,J SA No.19 of 2006 3.1. Late Narayana developed ill intention against the plaintiff and in collusion with defendant No.1 to deprive the rights of the plaintiff, executed a nominal and ineffective sale deed in favour of the wife of defendant No.1 i.e. defendant No.4 without delivering possession to an extent of Ac.1.17 ½ gts., out of the total suit land in Sy.No.809/B of Siricilla vide document No.1047 of 1994 dated 04.08.1994 in the office of the Sub-Registrar, Siricilla. The same was not binding on the plaintiff. The plaintiff on coming to know about the attitude of the defendant No.1 and late Narayana, filed an objection application before the Mandal Revenue Officer, not to implement the nominal and ineffective sale deed in the revenue records. On which late Narayana and defendant No.1 expressed their intention to partition the suit land and agreed to give 1/3rd share to the plaintiff in the suit land, but postponed the same. Thereafter, late Narayana fell ill and his mental condition was also effected, due to which no partition was effected. Late Narayana died six months ago. After the death of late Narayana, defendant Nos.2 and 3 succeeded to the share of late Narayana and were in possession of the suit land along with the plaintiff and defendant No.1. The defendant Nos.1 and 4 colluded with the defendant Nos.2 and 3 and were trying to sell away the entire suit land. As such, the plaintiff demanded them for partition on 10.01.1997 at Siricilla. The defendants denied the rights of the plaintiff over the suit 4 Dr.GRR,J SA No.19 of 2006 land. As such, filed the suit seeking the relief of partition and for allotment of 1/3rd share in the suit schedule property.
4. The defendant Nos.1 and 4 filed written statement admitting the relationship with the plaintiff and pedigree as shown in the plaint, but contended that Rajanna, their father expired intestate in the year 1973. During the lifetime of Rajanna and Narayana, in the year 1959, a partition took place and in the said partition, a old tiled roof house bearing No.8-4- 51 (corresponding old No.7-2-39) was allotted to and was given in possession to their elder brother Narayana and the tin roof house bearing No.8-4-52 was allotted and given in possession to the plaintiff and the open land in front of the said two houses was allotted to and given in possession to the defendant No.1. The plaintiff constructed a new RCC Building in place of tin roof house allotted to him. The defendant No.1 also constructed a tiled roof house in the land allotted to him and the same was allotted municipal number as 8-4-37. From the time of the said partition, they were all living separately and were divided in every respect. After the death of Rajanna and late Narayana, the plaintiff and defendant No.1 were not at all joint and never lived as joint family. Late Narayana did not act as Kartha. They had been separate in every respect. The suit land was the self acquired property of late Narayana, who alone purchased 5 Dr.GRR,J SA No.19 of 2006 it from one Pulluri Rajesham in the year 1966 long after the said partition. Late Narayana obtained a consent decree against the said owner in O.S. No.50 of 1966 on 20.03.1966.
4.1. The plaintiff and defendant No.1 had no concern whatsoever with the said purchase and decree. Late Narayana applied and got mutated his name in the revenue records for the year 1965-66 by producing the certified copy of the said decree. From the time of the said purchase, Narayana had been in actual and exclusive possession of the suit land. In revenue records also he was shown as the owner of the property and was in possession of the same. The plaintiff by exerting his money and influence over the VAO of Siricilla village, by name, Jalapathi Rao, got his name entered as occupant in the pahani for the year 1992-93. Late Narayana made a complaint in writing against the said wrong entry on 11.05.1993 to the District Collector, Karimnagar. On the order of the District Collector, Karimnagar, the RDO, Jagtial, made a detailed enquiry and suspended the VAO Jalapathi Rao from service for making such wrong entry. Again the name of Chiluka Narayana was being continued as owner and possessor of the suit land. On 04.08.1994 late Narayana by executing a registered sale deed No.1047 of 1994 sold Ac.1.17 ½ gts., out of the suit land bearing survey No.809/B of Siricilla village for a consideration of Rs.10,100/- to 6 Dr.GRR,J SA No.19 of 2006 defendant No.4 and delivered possession of the said land. The name of the defendant No.4 was entered in the revenue records as absolute owner and possessor of the same. The plaintiff had no right over the suit land. After the death of Chiluka Narayana, his son and widow i.e. defendant Nos.2 and 3 were in possession of land to an extent of Ac.1.17 ½ gts., of Chiluka Narayana as co-owners thereof and prayed to dismiss the suit.
5. Defendant No.2 filed a separate written statement on the same lines as that of defendant Nos.1 and 4, which was adopted by defendant No.3.
6. Basing on the above said pleadings, the trial court framed the issues as follows:
1. Whether the plaintiff and the D1 to D4 do constitute the un-divided joint Hindu family and the suit schedule property is their joint family property?
2. Whether the plaintiff is entitled for the partition of his 1/3rd share out of the suit schedule property?
3. To what relief?
7. The plaintiff examined himself as PW.1 and got examined a village elder, who conducted the panchayat, as PW.2 and got marked Exs.A-1 to A-11. The defendant No.1 examined himself as DW.1 and got examined the witness before whom the terms of the partition were reduced 7 Dr.GRR,J SA No.19 of 2006 into writing as DW.2. Exs.B-1 to B-13 were marked on behalf of defendants.
8. The trial court, on considering the oral and documentary evidence on record, held that the suit schedule property was the joint family property of the plaintiff and defendants and that the same was kept aside without partitioning earlier observed that and the plaintiff was entitled to 1/3rd share out of the suit schedule land on par with defendant No.1 and their late brother Narayana and passed a preliminary decree accordingly.
9. Aggrieved by the said judgment and decree passed by the trial court, the defendants preferred an appeal. The appeal was heard by the learned Senior Civil Judge, Siricilla as A.S. No.7 of 2002 and vide judgment and decree dated 27.10.2005, allowed the appeal reversing the judgment and decree of the Junior Civil Judge, Siricilla in O.S. No.17 of 1997 holding that the suit schedule land was the self acquired property of Narayana and the plaintiff was not entitled to claim any share therein.
10. Aggrieved by the said judgment of the learned Senior Civil Judge, Siricilla, the plaintiff preferred this second appeal. As no substantial questions of law were framed earlier, the second appeal was 8 Dr.GRR,J SA No.19 of 2006 admitted on 12.09.2024 by formulating the following substantial questions of law:
1. Whether the judgment of the lower appellate court is vitiated as contrary to Order 41 Rule 31 of CPC and whether the lower appellate court adjudicated the appeal on all questions of fact and law?
2. Whether the findings of the first appellate court are perverse contrary to the pleadings of the parties and the evidence on record?
3. Whether the property in the name of a coparcener prior to partition can be considered as a joint family property?
4. Whether the lower appellate court can make out a new case which was not pleaded by the party or without any issue or evidence with regard to the adverse possession?
5. Whether the lower appellate court committed an error in interpreting Exs.A-10 and A-11 documents and their effect?
11. Heard Sri Kiran Reddy Mallarapu, learned counsel for the plaintiff and Sri K. Kiran Kumar, learned counsel for the defendants.
12. Learned counsel for the appellant-plaintiff contended that late Narayana had filed O.S. No.50 of 1966 earlier in the court of the District Munsiff at Siricilla against his vendor Pulluri Rajesham and in the plaint filed by him in the said suit, Narayana contended that he was the owner and occupant of the suit land for a period of more than 12 years prior to his 9 Dr.GRR,J SA No.19 of 2006 filing the suit, the family was living jointly at that time as such, it could be inferred that the suit schedule property was a joint family property. The respondents-defendants could not now go beyond the admitted facts pleaded by late Narayana in O.S. No.50 of 1966. Admittedly, partition took place between them in the year 1959. The judicial admissions made by the parties or their agents before the Court would stand on a higher footing than evidentiary admissions and relied upon the judgments of the Hon'ble Apex Court in Nagindar Ramdas v. Dalpatram Locharam @ Brijram and others1 and Basant Singh v. Janaki Singh and others 2 on the aspect that, "admission by a party in plaint signed and verified by him can be used against him in other suits."
12.1 He further contended that no evidence was produced by the respondents-defendants to show that the suit schedule land was purchased after the partition in the year 1959 and no evidence was led by the defendants to show when and where the property was purchased by Narayana and the consideration passed or whether it was through simple sale deed or registered sale deed. The burden would lie upon the defendants to prove that late Narayana purchased the suit land from his vendor with his own funds. Late Narayana failed to plead in O.S. No.50 of 1 AIR 1974 SC 471 2 AIR 1967 SC 341 10 Dr.GRR,J SA No.19 of 2006 1966 that he purchased the suit land from his vendor Pulluri Rajesham. If late Narayana actually purchased with his own funds, certainly he would have pleaded the said fact in his plaint in O.S. No.50 of 1966. The said circumstance would clearly visualize that late Narayana did not purchase the suit land and the suit land was purchased in the name of late Narayana with the funds of joint family 12 years prior to filing of the suit in O.S.No.50 of 1966. He further contended that Exs.A-10 and A-11 documents would show that Narayana undertook to give certain portion of the land to defendant No.1 and the defendant No.1 in turn to the plaintiff. If the suit land was not a joint family property, there was no need for late Narayana to give certain portion of the land to defendant No.1 free of cost. Thus, Exs.A-10 and A-11 were strengthening the contention of the plaintiff that the suit schedule property was a joint family property. He further contended that as the suit land was covered with Mango and Tamarind trees, it was kept aside at the time of partition of other properties in the year 1959. The evidence of DW.2 also would prove that both the parties had wantonly kept the suit land aside out of partition.
12.2 He further contended that in a suit for partition, the burden would lie upon the person claiming the property to be the self acquired property to prove the same and that the appellate court wrongly cast the 11 Dr.GRR,J SA No.19 of 2006 burden upon the plaintiff and relied upon the judgments of the Hon'ble Apex Court in the State Bank of Travancore v. Aravindan Kunju Panicker and others3 and Shankarrao Dejisaheb Shinde (Since deceased) by Heirs v. Vithalrao Ganpatrao Shinde and Ors. 4 on the aspect that, "a Hindu family was presumed to be joint unless the contrary was proved."
12.3 He further contended that the appellate Court had gone beyond the pleadings in observing that late Narayana acquired title by adverse possession. There were no pleadings by parties in the said regard, no issue was framed nor any evidence was let in by the parties. The court could not make out a new case which was wholly inconsistent with the pleadings of the parties and relied upon the judgments of the Hon'ble Apex Court in Sheodhari Rai and others v. Suraj Prasad Singh and others 5 and in Mohammad Mustafa v. Sri Abu Bakar and Others 6 on the aspect that, "the finding without proper pleadings and necessary issues was not binding on the parties to the suit.
12.4. He relied upon the judgment of the Hon'ble Apex Court in Chevalier I.I. Iyyappan and another v. The Dharmodayam Co., 3 AIR 1971 SC 996 4 AIR 1989 SC 879 5 AIR 1954 SC 758 6 AIR 1971 SC 361 12 Dr.GRR,J SA No.19 of 2006 Trichur 7 on the aspect that, "party cannot change its case at appellate stage."
12.5 He further relied upon the judgment of the Hon'ble Apex Court in Karpagathachi and others v. Nagarathinathachi 8 on the aspect that, "a plea which would depend upon further investigation of facts could not be allowed for the first time in the appeal."
13. Learned counsel for the respondents, on the other hand, contended that whether the suit schedule property was a joint family property of the plaintiff, defendant No.1 and late Narayana or it was the self acquired property of late Narayana was the issue before the court. The contention of the plaintiff was that the suit schedule property was purchased in the name of Narayana, 40 years prior to the institution of the suit in the year 1997. The burden would lie upon the plaintiff to prove that the suit schedule property was a joint family property to claim a share in it or else he had to prove that the same was purchased with the income from the nucleus of the joint family and the same was kept in the name of Narayana, being the Kartha of the family. But, admittedly the father of the plaintiff, defendant No.1 and Narayana i.e. late Rajanna was alive till 1973 and during the lifetime of their father, Narayana could not be the Kartha of 7 AIR 1966 SC 1017 8 AIR 1965 SC 1752 13 Dr.GRR,J SA No.19 of 2006 the family. Narayana died in the year 1996. The suit schedule property was in the name of Narayana in all the revenue records. Only in the year 1992-93, the names of the plaintiff and defendant No.1 were entered in the revenue records as possessors in the pahani. On the complaint given by late Narayana, the said entries were rectified as per the orders in Exs.B-12 and B-13. When Narayana denied the title of the plaintiff and objected his name being entered in revenue records in 1992-1993 itself, no steps were taken by the plaintiff to file the suit immediately. The suit was filed by the plaintiff in the year 1997 only after the death of Narayana. The plaintiff had not challenged the nature of the suit schedule property during the lifetime of Narayana. No explanation was offered by the plaintiff as to why the suit schedule property was left over when there was an earlier partition in the year 1959. There were several inconsistencies in the case of the plaintiff. No substantial questions of law would arise, as there was no perversity in the findings of the first appellate court. The finding with regard to adverse possession given by the first appellant court also would not need to be set aside as the suit was not for declaration of title, but for partition. The observation of the first appellate court as to the acquisition of title by way of adverse possession was not germane for consideration. The nature of the property was required to be considered to consider the aspect as to who was the owner of the property. The findings of the first 14 Dr.GRR,J SA No.19 of 2006 appellate court were against the plaintiff and no interference of this Court was required in the said judgment and decree and prayed to dismiss the second appeal.
14. Substantial questions of law No.1 and 2:
1. Whether the judgment of the lower appellate court is vitiated as contrary to Order 41 Rule 31 of CPC and whether the lower appellate court adjudicated the appeal on all questions of fact and law?
2. Whether the findings of the first appellate court are perverse contrary to the pleadings of the parties and the evidence on record?
It is well settled that a second appeal under Section 100 of the Civil Procedure Code can only be entertained on substantial questions of law. Under Section 100 of CPC (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference on findings on fact is not warranted if it involves re-appreciation of evidence. The Hon'ble Apex Court in Hero Vinoth v. Seshammal9, held that:
"The phrase "substantial question of law", as occurring in the amended Section 100 of CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general 9 (2006) 5 SCC 545 15 Dr.GRR,J SA No.19 of 2006 importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172) , the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) , the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad.969):
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case, it would not be a substantial question of law."
15. The Hon'ble Apex Court in Chandrabhan (deceased) through LRs. & Others v. Saraswati & Ors.,10 held that:
"31. The proper test for determining whether a question of law raised in the case is substantial would be, whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this Court. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the question raised is palpably absurd, the question would not be a substantial question of law.10
AIR 2022 SC 4601 16 Dr.GRR,J SA No.19 of 2006
32. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first, a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179]).
33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law.
A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, 17 Dr.GRR,J SA No.19 of 2006 but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
16. In the present case it cannot be said that the first appellate court acted on no evidence. The appellants could not show that any material evidence was ignored by the first appellate court or any wrong inference had been drawn by it from the proved facts by applying the law erroneously. Evidence had been adduced by the appellant-plaintiff as well as the respondents-defendants. The first appellate court analyzed the evidence carefully and found that the trial court had erred in its analysis of evidence. The first appellate court rightly laid the burden of proof on the plaintiff. After considering the various citations relied by both parties, the first appellate court held that:
"After going through the citations relied upon by the both sides, I am of the emphatic view that, in a Suit for partition initial burden is there on the Plaintiff to establish that all the properties which are subject matter of the suit are the ancestral properties or to prove that a particular property was acquired with the nucleus of the joint family income. The moment the same is established, burden shifts on the other side to prove that 18 Dr.GRR,J SA No.19 of 2006 the particular property acquired by him with his own monies etc. In the case on hand though PW-1 stated that the suit land was purchased by all the brothers for a consideration of Rs.3000/-, nothing was placed before the Court to show what was his contribution out of the said amount. It is also not explained how Mr. Narayana became Kartha of the family, when their father Sri Rajanna was alive till 1973. No evidence is placed to the effect that under particular circumstances Mr. Narayana managed the joint family for a certain period. Therefore, it is very difficult to believe the version of PW-1 that, Mr. Narayana was the Kartha of the joint family on the date of the purchase of the suit land i.e. in the year 1956-57. Even if the joint family was in existence by the year 1956-57, it cannot be presumed that Mr. Narayana was the Kartha of the Joint family and due to that capacity only, the suit land was purchased in his name, on behalf of PW-1 and DW-1 also."
17. Thus, the first appellate court, on considering the oral and documentary evidence on record and the law on this aspect, observed that the trial court committed mistake in coming to the conclusion that the suit land was the property of the joint family and that it was liable for partition. No infirmity was found in the reasoning of the first appellate court, which calls for interference by this Court. The judgment of the lower appellate court is in accordance with the principles laid down under Order 41 Rule 31 of CPC and it adjudicated the appeal on all questions of fact and law and no perversity is observed in the judgment of the first appellate court. As such, the substantial questions of law formulated in question Nos.1 and 2 are answered against the appellant.
18. Substantial Question of Law No.3:
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Dr.GRR,J SA No.19 of 2006 Whether the property in the name of a coparcener prior to partition can be considered as a joint family property?
As seen from the pleadings, the plaintiff contended that he along with his brothers late Narayana and defendant No.1 jointly purchased the suit schedule property to an extent of Acs.2.35 gts., in Sy. No.809/B in Siricilla village in the name of late Narayana from one Pulluri Rajesham 40 years ago. Thus, as seen from the averments in the plaint also, the plaintiff is contending that the suit schedule property was not an ancestral property but was a joint property purchased by him along with his brothers.
As such, it was not an ancestral property but was only a joint property. In such a case, whether the same was purchased prior to partition in the year 1959 or subsequent to the partition would not matter much. The plaintiff has to establish and prove that he also contributed to pay the amount to the vendor out of the consideration passed. But, no sale deed or agreement to sale was filed by the plaintiff to show that the property was purchased by all the three brothers in the name of Narayana, the elder brother. It was further averred in the plaint that late Narayana was the Kartha and elder member of the joint family and when Pulluri Rajesham, the vendor, denied the title and possession of late Narayana, all the three of them filed the suit in the name of Narayana. The plaintiff admitted in his evidence that a 20 Dr.GRR,J SA No.19 of 2006 partition took place between the brothers and the house properties were divided between them. A document evidencing the partition was also filed by the defendants marked as Ex.B1. The said document was dated 27.12.1959. The three brothers partitioned all the movable and immovable properties including gold and silver and the house properties and also recorded as to how the maintenance of their parents to be decided. They had not stated about the existence of the suit schedule property in the said partition deed and why it was left over. If the suit schedule property was a joint property or a joint family property they would have partitioned the same also in 1959 itself. When the contention of the plaintiff was that the same was purchased in and around 1954, 12 years prior to the filing of the suit O.S. No.50 of 1966 in the name of his brother late Narayana. The learned counsel for the appellant placed much reliance upon the averments in the plaint in O.S. No.50 of 1966 wherein late Narayana averred that he was the legal occupant and owner of the suit land having been in possession over it for more than 12 years. The contention of the learned counsel for the appellant-plaintiff was that as the suit was filed in the year 1966 and as the plaintiff therein (Narayana) averred that he was in possession for more than 12 years, the suit schedule property was purchased in the year 1954 prior to their partition in the year 1959, as such, the suit schedule property was a joint family property. 21
Dr.GRR,J SA No.19 of 2006
19. There is no presumption that a particular property is a joint family property even though the family is living jointly at that time. The presumption is only with regard to the existence of a family living in joint, but not with regard to the property being in joint, which was acquired during the existence of a joint family. The Hon'ble Apex Court in D.S. Lakshmaiah & Anr. v. L. Balasubramanyam & Anr. 11, held that:
"There is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus."
20. The learned counsel for the appellant-plaintiff relied upon the judgments of the Hon'ble Apex Court in Basant Singh v. Janki Singh and others (2 supra) on the aspect that, "an admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of Section 17 of the Indian Evidence Act, 1872, and may be proved against him in other litigations."
11
AIR 2003 SC 3800 22 Dr.GRR,J SA No.19 of 2006
21. He also relied upon the judgment of the Hon'ble Apex Court in Nagindas Ramdas v. Dalpatram Locharam @ Brijram and others (1 supra) on the aspect that, "Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the time of evidence, are by themselves, not conclusive. They can be shown to be wrong."
22. In the light of the these principles when the averments in the plaint in O.S. No.50 of 1966 is looked into, the plaintiff therein had not stated that it was a joint property or purchased by him along with his brothers or that he was filing the suit on behalf of his brothers also. He only stated that he was in exclusive possession and enjoyment of the suit land adversely to the knowledge of the defendant therein (Pulluri Rajesham). The suit land was a mango garden having tamarind trees and mango trees and other trees also and that the plaintiff was enjoying the 23 Dr.GRR,J SA No.19 of 2006 fruits of the trees having been in possession over the suit land and that he perfected his title long back by prescription of time. He further contended that the defendant intentionally caused wrong entries in the record of rights in his name as such, he filed the suit for alteration of wrong entries in the record of rights of Khasra Pahani for the year 1954-55 of the village of Siricilla with regard to Sy.No.809/B to an extent of Acs.2.35 gts., for deleting the name of the defendant and substituting his name.
23. Thus, the plaintiff therein i.e. Narayana had not even stated that he purchased the suit land but filed the suit stating that he perfected his title by prescription and claimed it by way of adverse possession. In the said suit, the defendant-Pulluri Rajesham accepted the title of the plaintiff therein in his written statement stating that the plaintiff therein was in possession and enjoyment of the suit land since more than 12 years and that he had no rights whatsoever upon the suit land at any time and reported no objection for decreeing the suit in favour of the plaintiff therein. As such, the said suit was decreed and basing on the said decree, the name of Narayana was incorporated in the revenue records.
24. The lower appellate court, on considering all these aspects observed that:
24
Dr.GRR,J SA No.19 of 2006 "No evidence is placed by PW-1 to the effect that, the joint family possessed income yielding properties; so that with the said income the Suit land was purchased by Mr. Narayana. In the absence of any cultivable lands for the joint family or in the absence of particular proof that the joint family was having income yielding properties, it is difficult to presume that, the Suit land was purchased with the nucleus of the joint family income. As the PW-1 failed to prove about the presence of income yielding properties to the joint family, the burden cannot be thrown on Mr. Narayana to establish how he purchased the suit land. It is important to note that, no where in Ex.A5 (plaint in O.S. No.50 of 1966) it is mentioned that, the suit land was purchased jointly by all the brothers. In Ex. A.6 written statement also, there is no mention to the effect that, all the three brothers are in adverse possession over the suit property as against the Defendant. There is no evidence before the Court to the effect that, the PW-1 and DW- 1 have also contributed amounts for the filing of O.S. 50/1966 by Mr. Narayana. If really, all the three brothers have jointly purchased the suit land there is no difficulty for all of them to file the suit by figuring as Plaintiffs. After going through the Ex A.6 and A.8 it is very clear that, the defendant/Vendor is a consenting party to the Suit and it is a consent Judgment & Decree. Ex.A.9 goes to show that the name of Mr. Narayana was mutated in the Khasra Pahani in pursuance of the Ex A.8 Decree obtained in OS.50/1966. As per Pw-1, all the brothers were in amicable terms by the date of Ex.A.5 and even by the date of Ex.A.9. In such circumstances there cannot be any difficulty to enter the names of all the brothers in Khasra Pahani. As already stated by me when Mr. Narayana was proved to be not the Kartha of the family by the date of Ex.A.9 and if all the brothers jointly filed Suit in the name of Mr. Narayana, what prompted the PW-1 and DW-1 not to insist their names to be included in the Khasra Pahani is not explained. Here, the Appellant counsel submitted that, as already observed in the Citation reported in AIR 1978 Bombay 229, the Property acquired by one of the member of the joint family cannot be considered as ancestral property and it is to be treated as the self acquired property. The Ex.A.5 goes to show that Mr. Narayana claimed the title over the suit land by pleading adverse possession. So, this is a strong circumstance to presume that, the Suit land was acquired by Mr. Narayana for himself only, but not on behalf of the other two brothers. Added to this, during his life time Mr. Narayana on 6-5-1993 (as can be observed in Ex.B.12) sent a representation for rectification of the wrong entry in the Pahani for the year 1992- 93 showing PW-1 and DW-1 as the joint possessors along with Mr. Narayana. The Ex.B.12 & B.13 goes to show that the 25 Dr.GRR,J SA No.19 of 2006 wrong entry was rectified after an inquiry in which notices were also ordered on PW-1. In spite of the same, the PW-1 not filed any suit till the death of Mr. Narayana claiming that he is also one of the joint owners of the suit land. Ex.A.1 and B.2 are one and the same under which Mr. Narayana executed the registered sale deed in favor of D.4 for a consideration of Rs.10,100/- with regard to half of the suit land. The Ex. A 10 and A.11 are Dt.
18-5-1993. If really, the PW-1 is fighting for his rights over the suit property, there is every possibility for him to know about the Ex.B.2. For the reasons better known to the PW-1, this Suit was filed only after the death of Mr. Narayana. It shows that, the PW-1 is not fair enough in filing the Suit.
Admittedly, when all the joint family properties are partitioned between the brothers even though in the life time of their parents and there is an agreement to maintain the parents, no reason was given for leaving out the suit land from the partition. The existence of tamarind trees in the suit land was admitted. So it can be considered as an income yielding property. Therefore, the argument of the Respondent counsel that, as the suit land is an income yielding property, it was left out from the partition cannot be appreciated for the reason that even if the partition is done, still the person who gets the share out of the same can also enjoy the income from the particular share."
25. As the appellant-plaintiff failed to discharge the burden laid upon him in showing that the family has any income yielding properties and that the suit schedule property is purchased with the nucleus of the joint family properties to consider it as a joint family property or that it was purchased jointly by him along with his other brothers, the same cannot be considered as a joint family property or joint property which was liable for partition. This Court does not find any illegality in the judgment of the lower appellate court to consider it as perverse or based on no evidence or any substantial question of law arising out of it. As such, the 26 Dr.GRR,J SA No.19 of 2006 property in the name of Narayana even acquired by him prior to partition in the year 1959 cannot be considered as a joint family property.
26. Substantial question of law No.4:
Whether the lower appellate court can make out a new case which was not pleaded by the parties or without any issue or evidence with regard to the adverse possession?
The learned counsel for the appellant-plaintiff submitted his arguments at great length pointing out that the lower appellate court committed a mistake by framing an issue on the aspect "whether Mr. Narayana acquired title by adverse possession over the suit property in pursuance of decree in O.S. No.50 of 1966, if so it cannot be considered as joint property and not liable for partition?", contending that there were no pleadings to the effect of acquiring title by adverse possession by Narayana and that the lower appellate Court without pleadings framed an issue in this regard and relied upon several judgments of the Hon'ble Apex Court on this aspect.
27. He relied upon the judgment of the Hon'ble Apex Court in Siddhu Venkappa Devadiga v. Smt. Rangu S. Devadiga & Ors.12, on the aspect that, "the decision of a case cannot be based on grounds outside 12 AIR 1977 SC 890 27 Dr.GRR,J SA No.19 of 2006 the plea of the parties and that it is the case pleaded which has to be found." He relied upon the judgment of the Hon'ble Apex Court in Chevalier I.I. Iyyappan & Anr. v. The Dharmodayam Co., Trichur (6 supra), on the aspect that, "party cannot change its case at the appellate stage. The plea of irrevocability of licence not raised in trial court nor adjudicated upon, cannot be raised for the first time in the appeal." He further placed reliance upon the judgment of the Hon'ble Apex Court in Ishwar Dutt v. Land Acquisition Collector & Anr.13, on the aspect that, "High Court could not have gone outside the pleadings and make out a new case." He relied upon the judgment of the Hon'ble Apex Court in Mohammad Mustafa v. Sri Abu Bakar & Ors. (5 supra) on the aspect that, "a finding without proper pleadings and necessary issues was not binding on the parties to the suit."
27.1 He further placed reliance upon the judgment of Hon'ble Apex Court in Patel Kantilal Parshottamdas v. Jitender Kumar Nanjibhai Mistry 14 on the aspect that, "the High Court could not of its own set up a new case which was not pleaded by any of the parties." He further relied upon the judgment of the Hon'ble Apex Court in Shyam 13 AIR 2005 SC 3165 14 (2017) 13 SCC 529 28 Dr.GRR,J SA No.19 of 2006 Narayan Prasad v. Krishna Prasad & Ors. 15 on the aspect that, "no relief can be granted to a party without the pleadings." He further relied upon the judgment of the Hon'ble Apex Court in Ratanlal @ Babulal Chunilal Samsuka v. Sunderbai Govardhandas Samsuka 16 on the aspect that, "any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to rescue of the parties." He relied upon the judgment of the Hon'ble Apex Court in Annasahed Bapusaheb Patil & Ors. v. Balwant @ Balasaheb Babusaheb Patil17 on the aspect that, "Where possession could be referred to a lawful title it will not be considered to be adverse. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation."
27.2 He also relied upon the judgment of the Hon'ble Apex Court in Sheodhari Rai and others v. Suraj Prasad Singh and others (4 supra) on the aspect that, "The possession of the defendants being permissive, it must be regarded as having been in possession until the later asserted an adverse possession. It was not open to the trial court to make a case which was not set up by the parties."
15AIR 2018 SC 3152 16 (2018) 11 SCC 119 17 AIR 1995 SC 895 29 Dr.GRR,J SA No.19 of 2006 27.3 He further relied upon the judgment of the Hon'ble Apex Court in Boppana Venkata Rao (died) per LRs and others v. Sunkara Krishna Murthy 18 on the aspect that, "It is nothing but making out a third case and reversing the findings of the trial court which is in accordance with the pleadings and evidence on record. The findings recorded by the learned first appellate court thus are contrary to the pleadings of the parties and the evidence forthcoming in this case."
28. As discussed above, it was the contention of the plaintiff that he purchased the property along with his brothers Narayana and defendant No.1, but failed to prove the same. He, however, placed reliance upon the pleadings of Narayana in O.S. No.50 of 1966 wherein he contended that the property was acquired by him 12 years ago and claimed the same perfecting his title by way of prescription of time. When the plaintiff himself got marked the said document as Ex.A5 which shows that Narayana had filed O.S. No.50 of 1966 claiming his right and title by way of adverse possession, framing the same as the point for consideration by the lower appellate Court and deciding it, considering the same as not a joint property and not liable for partition, need not be found fault with. This Court considers that there is no substantial question of law arising 18 2011 (4) ALD 609 30 Dr.GRR,J SA No.19 of 2006 from out of the observation of the lower appellate court in this regard and any illegality committed by it in framing such a point for consideration and answering the same against the plaintiff, as it was the plaintiff who placed reliance upon on it. The plaintiff cannot ask the court to consider the document only upon his view point but not upon the other points raised in it or on the relief claimed in it. As such, this Court considers that the lower appellate Court had not made out any new case which was not pleaded by the parties or that there was no evidence in coming to the conclusion with regard to the adverse possession of Mr. Narayana over the suit schedule property.
29. Substantial question of law No.5:
Whether the lower appellate court committed an error in interpreting Exs.A-10 and A-ll documents and their effect?
The contention of the learned counsel for the appellant was that the lower appellate Court committed an error in interpreting Exs.A-10 and A-11 documents as the said documents would go to show that late Narayana undertook that he would give certain portion of the land to the plaintiff, if the suit land was not joint family property, there was no need for late Narayana to undertake to give certain portion of land to defendant No.1 free of cost and that Exs.A10 and A11 were strengthening the 31 Dr.GRR,J SA No.19 of 2006 contention of the plaintiff on the aspect that the suit schedule p;roperty was a joint family property.
30. This aspect was also discussed by the lower appellate court at length by framing a point for consideration as to whether Exs.A-10 and A- 11 were void documents under Section 29 of the Contract Act and inadmissible for want of stamp duty, registration and consideration. The lower appellate court observed that Exs.A-10 and A-11 are the documents executed on white papers and that they were not registered documents. Both the documents were addressed to the SI of Police, Siricilla and there was no explanation as to why they were addressed to the SI of Police. Ex.A-10 would disclose that Narayana gave an undertaking that he would give half share to his other brother DW.1 on southern side, in case DW.1 would bear registration expenses for the same. It was further observed that the details of the property were not mentioned and there is no acceptance by the other party on Ex.A10. It was also observed that Ex.A11 was a similar document like Ex.A10 in which it was mentioned that, "In case, late Narayana registered the property in Sy.No.809/B to DW.1, DW.1 agreed to register the same to PW.1, if he would bear the expenses for the registration of 58.75 gts.
32
Dr.GRR,J SA No.19 of 2006
31. The lower appellate Court observed that there was discrepancy in addressing the person. Though the document appeared to be addressed by DW.1, on perusal of the same, it would go to show that somebody prepared it. No consideration aspect was mentioned in both the documents. There was no reference in the said documents that the property in question was a joint property and all the brothers out of love and affection to each other had agreed to transfer the same in the names of others. The lower appellate Court also considering the judgments on the said aspect observed that the unregistered and unstamped document under which no consideration had been passed were not admissible in evidence and the document extinguishing or limiting rights in immovable property was a compulsorily registerable document, as such, no value could be attached to the said documents and observed that they were void and inadmissible documents.
32. This Court does not find any error in the observation of the lower appellate court in interpreting the documents marked under Exs.A10 and A11 as void and inadmissible documents for the reasons mentioned therein in the above judgment. This Court does not find any substantial questions of law arising in it or that the lower appellate Court committed any mistake in interpreting Exs.A10 and A11. Thus, this Court does not 33 Dr.GRR,J SA No.19 of 2006 find any infirmity in the reasoning of the first appellate Court in analyzing the evidence or the documents marked, which calls for any interference by this Court. The questions raised would not meet the test holding that they were substantial questions of law. As such, the second appeal is liable to be dismissed.
33. Accordingly, the Second Appeal is dismissed confirming the judgment and decree dated 27.10.2005 passed in A.S. No.7 of 2002 on the file of the learned Senior Civil Judge, Siricilla, reversing the judgment and decree dated 25.07.2002 in O.S No.17 of 1997 on the file of the Junior Civil Judge, Siricilla. No costs.
Miscellaneous Applications pending, if any, shall stand closed.
_____________________ Dr. G.RADHA RANI, J February 07, 2025 KTL