. Non- filing of rejoinder amounts to admission ?= Sometimes, the necessity to prove the facts that are pleaded in a suit may not arise in case the defendants do not dispute it. If there is not only a specific denial, but also a fresh case presented by the defendant, the plaintiff would be under obligation to file a rejoinder apart from proving the facts pleaded by him in the plaint. The plea raised by the defendant that the appellant is a stranger to the Maturi family, his father came to the house of Subbarangaiah as a farm servant and that no partition has taken place during the life time of Subbarangaiah, were not at all contradicted by filing any rejoinder. Added to that, the appellant did not prove the factum of partition much less the details thereof. Hence, there was a clear failure on the part of the appellant to prove the case pleaded by him.


THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1383 of 2004    

05-01-2012.

Maturi Rangaiah

Mutyala Venkata Lakshamma (died) and others  

Counsel for the Appellant:Mr. M.V.S. Suresh Kumar

Counsel for the Respondents:    Mr. A. Giridhar Rao Mr. P. Venkat Rao

ORDER:
       
         The unsuccessful plaintiff in O.S.No.84 of 1989 on the file of the
Subordinate Judge, Markapur, is the appellant.  He filed the suit for
declaration of title and perpetual injunction in respect of the suit schedule
properties comprising of Item No.1: a House at Nekhunambad Village and Item
No.2: Acs.3-74 cents of land at Salakalaveedu village of Prakasam District.  He
pleaded that item No.2 and the eastern portion of the item No.1 fell to his
share in a partition that took place in the year 1966 and that thereafter, he
purchased the western portion of item No.1 from one Mr. Maturi Subbarangaiah and
ever since then he is in exclusive possession and enjoyment of the suit schedule
properties.  According to him, the
1st respondent was the kept mistress and respondent Nos.2 and 3 (defendant Nos.2
and 3) are the daughters, of late Maturi Subbarangaiah.  Respondent Nos.4 to 7
are the legal representatives of the 1st respondent.

2.  The appellant pleaded that the entries in the revenue records and the
proceedings that ensued before the Land Reforms Tribunal confirm his ownership
and possession over the property.  His grievance was that one week prior to the
filing of the suit, the respondents and their followers, who were shown as
defendant Nos.6 to 10 in the suit, threatened to dispossess him from the
property.

        3.  2nd defendant filed a written statement i.e. the
2nd respondent herein, and the same was adopted by the other contesting
defendants.  According to them, the schedule properties are the self-
acquisitions of Maturi Subbarangaiah and that the appellant is the stranger to
the Maturi family much less related to Subbarangaiah.  According to them, the
surname of the appellant is Darimadugu and not Maturi, and that he is a native
of Racherla village.  They further pleaded that the father of the appellant came
to the house of Subbarangaiah as a farm servant.  It was alleged that Maturi
Rangasayamma wife of Subbaraigaiah filed O.S.No.60 of 1971 in the court of
District Munsif, Giddalur for maintenance for herself and her daughter, 3rd
respondent herein, and that the appellant managed to get certain documents filed
by Subbarangaiah making him to believe that unless partition is pleaded, charge
may be created against all his properties.  It was also pleaded that
Subbarangiaah executed a Will on 09-01-1984 in favour of the 1st respondent
bequeathing the suit schedule properties.  They pleaded that the appellant was
never in the possession and enjoyment of the schedule properties and that he has
no concern whatever.

4.  The trial court dismissed the suit through judgment, dated 17-04-1996.  The
appellant filed A.S.No.138 of 1996 in the Court of IV Additional District Judge,
(Fast Track Court), Ongole.  The appeal was dismissed on 30-06-2004.  Hence,
this Second Appeal.

5.  M.V.S.Suresh Kumar, learned counsel for the appellant submits that his
client filed various documents such as, the orders of the Land Reforms Tribunal
(Ex.A-1), sale deed executed by Subba Rangaiah in favour of the appellant (Ex.A-
2), certified copy of deposition in O.S. No.60 of 1971 (Ex.A5) and other
documents; and still the relief was not granted.  He contends that excessive
importance was given to certain proceedings initiated before the revenue
authorities that the approach adopted by the trial Court and the lower appellate
court cannot be countenanced in law.

6.  Sri A. Giridhar Rao & P. Venkat Rao, learned counsels for the respondents,
on the other hand, submit that the suit was filed as a speculative measure and
that the falsity of the claim in the plaint is evident from the fact that though
the appellant was neither coparcener nor co-owner of late Subbaranaigah,
partition was pleaded between them. They further submit that the trial Court and
the lower appellate Court found that item No.1 of the schedule property on the
one hand and the one said to have been purchased under Ex.A-2 are different from
each other and that the appellant never acquired any title over item No.2 of the
schedule property.  It is also urged that the appellant made an effort to knock
away the property of Subbarangiah by taking advantage of his acquaintance with
him, as well as the differences between Subbarangaiah and his wife.

7.  The suit was filed for the reliefs of declaration of title and injunction in
respect of the schedule properties.  While the appellant pleaded that the
properties have fallen to his share in a family partition that took place in the
year 1966, the respondents flatly denied his entitlement to the suit properties.
A detailed written statement was filed narrating the manner in which the
appellant got acquaintance with the family of Subbarangaiah and the attempt said
to have been made by him, to knock away the properties.

8.  The trial court framed the following issues for consideration:
1. Whether the plaintiff is entitled for the declaration of his title over the
plaint schedule property as prayed for?

2. Whether the plaintiff is entitled for permanent injunction restraining the
defendants from entering upon plaint schedule properties and dispossession the
plaintiff therefrom or from interfering with the possession and enjoyment of the
same?

3. Whether the will dated 09-01-1994 alleged to have been executed by late
Subbarangaih is true, valid and binding on plaintiff?

4. Whether the alleged admissions made by late Maturi Subbarangaiah are true,
valid and binding on defendant Nos.1 to 3 and if so, what are their effect?

5. Whether the sale deed, dated 22-06-1989, executed by defendant No.1 in favour
of defendant Nos.2 and 3 is true, valid and binding on the plaintiff?

6. Whether the cause of action set up in the plaint is true?

7. Whether the defendant Nos.1 and 4 to 10 are necessary parties to the suit?


9.  On behalf of the appellant, PWs.1 to 3 were examined and Exs.A-1 to A-7 were
filed.  On behalf of the respondents, DWs.1 to 8 were examined and Exs.B-1 to B-
8 were filed.

10.  The trial Court appointed a Commissioner.  The report and the plan
submitted by the Commissioner, were taken on record as Exs.C-1 and C-2.  Ex.X-1
is the entry in the Admission Register.

11.  Upon dismissal of the suit, the appellant herein filed A.S.No.138 of 1996.
The lower appellate court framed the following points for its consideration:-
1. Whether the suit is barred under Section 58 of the Limitation Act?

2. Whether the plaintiff can question the genuineness of Ex.B1 will dated 09-01-
1984?

3. Whether Ex.B1 Will, dated 09-01-1984 is true, valid and binding on the
plaintiff?

4. Whether the partition pleaded by the plaintiff is true, valid and binding on
the defendants?

5. Whether the plaintiff was in possession of suit property as on the date of
suit or earlier?

The appeal was dismissed.

12.  The basic premise on which the appellant claimed the relief of declaration
of title was that half of the item No.1 and the entire item No.2 of the schedule
property have fallen to his share in a family partition that is said to have
taken place in the year 1966.  Remaining half of the item No.1 was said to have
been purchased by him through Ex.A-2.

13.  An individual can certainly acquire title to an item of property, if it has
fallen to his share in a partition.  If the partition is through a decree of a
Court or a written document, filing of the decree or the document, as the case
may be, would go a very long way in establishing the title.  If on the other
hand, the partition is oral, the evidence to prove it, can be adduced.  Such
evidence may comprise of the depositions of the persons, who were allotted
shares, or those acquainted with the partition or the revenue records, that
reflect the partition.

14.  In the instant case, except stating that the property has fallen to his
share, the appellant did not elaborate the manner in which the partition has
taken place.  The basic aspects that are required to be stated and proved in
relation to partition are, the composition of the joint family or coparcenery
i.e., the members comprising of it, the existence of the properties that are
held by it, the shares that are allotted to various coparceners and in
particular, the person pleading the partition.  The plaint is blissfully silent
in all these aspects.

15.  Sometimes, the necessity to prove the facts that are pleaded in a suit may
not arise in case the defendants do not dispute it.  If there is not only a
specific denial, but also a fresh case presented by the defendant, the plaintiff
would be under obligation to file a rejoinder apart from proving the facts
pleaded by him in the plaint.  The plea raised by the defendant that the
appellant is a stranger to the Maturi family, his father came to the house of
Subbarangaiah as a farm servant and that no partition has taken place during the
life time of Subbarangaiah, were not at all contradicted by filing any
rejoinder.  Added to that, the appellant did not prove the factum of partition
much less the details thereof.  Hence, there was a clear failure on the part of
the appellant to prove the case pleaded by him.

16.  Much reliance was placed by the appellant upon orders passed by the Land
Reforms Tribunal, filed as Ex.A-1, and deposition of Subbarangaiah in O.S.No.60
of 1971, filed as Ex.A-5.  An observation by the Tribunal does not confer title.
So far as Ex.A-5 is concerned, the appellant is not a party to O.S.No.60 of 1971
nor that was a suit for declaration of any rights.  It was suit filed by the
wife of Subbarangiah for maintenance and that ended in compromise.  No rights
can be said to have accrued to the appellant from the decree passed in that
suit.

17.  The appellant has also relied upon the deposition of Subbarangaiah in
O.S.No.60 of 1971 (Ex.A-5).  Assuming that there was any admission, it does not
enure to the benefit of the appellant, particularly, when the scope of the suit
itself was very limited.  At any rate, the deposition of a witness in a suit
looses its significance, if the suit was either dismissed for default or was
decreed on the basis of compromise.

18.  It may be true that the entries in the revenue records for a particular
period were in favour of the appellant vis-a-vis the suit schedule properties.
However, at the instance of the respondents, the entries are said to have been
altered in favour of the respondents and Ex.B-8 is filed in that behalf.  Though
Ex.B-1 was not proved, it does not make much difference, as long as the
appellant herein failed to prove facts pleaded by him.  This Court does not find
any basis to interfere with the judgments passed by the trial Court and the
lower appellate Court.

19.  The second appeal is dismissed.  There shall be no order as to costs.
____________________  
L. NARASIMHA REDDY, J    
January 05, 2012.

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