Bad for non- joinder of necessary parties - The joint family comprised of three brothers. However, he impleaded only one brotherviz., 1st defendant, and omitted the other brother, by name Venkatappa. Even if the plea of the appellant that Venkatappa relinquished share in his favour is true, he ought to have impleaded Venkatappa, so that the truth would come out. He did not do so, despite the objection raised by his brother, the 1st defendant. In addition to that, the evidence that was placed before the trial Court discloses that item No.8 of the suit schedule property stood in the name of Vasudeva Rao and four others (as per Ex.X.3) and item No.4 also stood in the name of Vasudeva Rao and three others. This fact was brought to the notice of this Court as well as the trial Court during the course of trial. Still he did not implead them. The suit filed by the appellant suffered from serious infirmity and the trial Court and the lower Appellate Court have taken correct view of the matter. The basic infirmities that crept into the suit were not even rectified by the appellant despite the fact that they have been pointed out from time to time.


  THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

Second Appeal No.136 of 2013
JUDGMENT:
         
          The appellant filed O.S.No.209 of 1997 in the Court of Principal Junior Civil Judge, Madanapalle, against the respondents herein, for the relief of partition and separate possession of as many as 7 items of property.  According to him, he has two brothers, and out of them, one has relinquished his share.  On this premise, he claimed half share in the suit schedule property.  The brother of the appellant, who figured as
1st defendant, contested the suit.  He denied the relinquishment of share of their brother.  He has also raised an objection as to the non-joinder of necessary parties.  In addition to that, it was pointed out that items 8 and 9 of the suit schedule are in the names of M/s.Vasudeva Rao and four others and those persons were not made parties.  The trial Court took note of these and other factors and dismissed the suit through judgment dated 13.11.2002.  Aggrieved by that, the appellant filed A.S.No.2 of 2003 in the Court of VII Additional District Judge, (FTC), Madanapalle, Chittoor.  The appeal was dismissed on 20.12.2008. Hence, this second appeal.

           Heard Sri K.Mahadeva, learned counsel for the appellant.

The suit was filed for the relief of partition and separate possession of 7 items of property.  On the basis of the pleadings before it, the trial Court framed the following issues:

1.                                “Whether the plaintiff is entitled for partition of plaint schedule property into two equal shares and for allotment of one such share to him as prayed for?
2.                                Whether the suit is bad for non-joinder of necessary parties to the suit?
3.                                Whether the suit schedule S.Nos.were divided long back among all the co-owners and the respective co-owners are in separate possession and enjoyment of the extents fallen to their shares by forming ridges?
4.                                To what relief?”

On behalf of the appellant, PWs.1 to 3 were examined and Exs.A.1 to A.10 were filed.  On behalf of the appellants, DWs.1 to 5 were examined and Exs.B.1 to B.3 were filed.   In addition to that, the Court marked Exs.X.1 to X.7.

In the appeal preferred by the appellant, on dismissal of the suit, the lower Appellate Court framed the following points for its consideration:

1.                              “Whether the plaintiff has established that his brother’s son Appinayani Narayana s/o Venkatappa relinquished his right over the plaint schedule property in favour of the plaintiff and first respondent?
2.                              Whether the appellant has established the plea of Ouster and the plea of adverse possession?
3.                              Whether the plaintiff being the Co-sharer or Co-owner, entitled to take the plea of ouster and plea of adverse possession against the other co-owners or co-sharers?”

  All the points were answered against the appellant and dismissed the appeal.

The appellant herein pleaded co-parcenary rights.  
The joint family comprised of three brothers.  However, he impleaded only one brotherviz., 1st defendant, and omitted the other brother, by name Venkatappa. 
Even if the plea of the appellant that Venkatappa relinquished share in his favour is true, he ought to have impleaded Venkatappa, so that the truth would come out.  
He did not do so, despite the objection raised by his brother, the 1st defendant.  
In addition to that, the evidence that was placed before the trial Court discloses that item No.8 of the suit schedule property stood in the name of Vasudeva Rao and four others (as per Ex.X.3) and item No.4 also stood in the name of Vasudeva Rao and three others.  
This fact was brought to the notice of this Court as well as the trial Court during the course of trial.  Still he did not implead them.  
The suit filed by the appellant suffered from serious infirmity and the trial Court and the lower Appellate Court have taken correct view of the matter.  
The basic infirmities that crept into the suit were not even rectified by the appellant despite the fact that they have been pointed out from time to time.

No substantial question of law arises for consideration.  The judgments rendered by the trial Court and the lower Appellate Court do not warrant any interference by this Court.

The second appeal is accordingly dismissed.   There shall be no order as to costs.

The miscellaneous petition filed in this second appeal shall stand disposed of.
____________________
L.NARASIMHA REDDY, J.    
Dated:22.02.2013
GJ











THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Second Appeal No.136 of 2013



Date:22.02.2013

GJ                                                                     





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