in partition suit mere long possession and enjoyment of one of the coparcener does not vest him with any special rights from partition = GUDIVADA NARAYANAMURTHY VS GUDIVADA PARVATHAMMA & 13 ORS= Reported in http://hc.ap.nic.in/csis/MainInfo.=SA&mno=855&year=2013

in partition suit mere long possession and enjoyment of one of the coparcener does not vest him with any special rights from partition =
Though he is said to be the illegitimate child of late Yerranna, he is entitled to a share.  It is not his case that either any prior partition in the family has taken place, or an item claimed by him is his
self-acquisition.  The mere fact that he is in long possession of the property, by itself does not take away the property from the purview of partition. 
SA 855 / 2013

SASR 9690 / 2007
PETITIONERRESPONDENT
GUDIVADA NARAYANAMURTHY  VSGUDIVADA PARVATHAMMA & 13 ORS
PET.ADV. : SUBRAHMANYAMRESP.ADV. : 
SUBJECT: CONCURRENTDISTRICT:  VISAKHAPATNAM
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

SECOND APPEAL No.855 of 2013
JUDGMENT:
         
Respondents 1 and 2 herein filed O.S.No.63 of 1994 in the Court of Junior Civil Judge, Narsipatnam, against the appellant (defendant No.1) and respondents 3 to 14, for partition and separate possession of the suit schedule properties. The trial Court passed a preliminary decree through judgment, dated 23.11.2001.  Aggrieved by that, the 1st defendant filed A.S.No.19 of 2002 in the Court of Senior Civil Judge, Narsipatnam.  The appeal was dismissed on 23.06.2006.  Hence, this second appeal.

For the sake of convenience, the parties herein are referred to as arrayed in the suit.

 It was pleaded that the suit schedule properties were held in common by three brothers, viz., Gudivada Peda Tammunaidu, China Thammunaidu and Yerranna.  The plaintiffs are the legal representatives of China Thammunaidu.   The 3rd defendant is the wife, defendant No.4 and one Chinathalli are the daughters, whereas defendants 1 and 2 are illegitimate son and daughter, respectively, of Yerranna.  It was further pleaded that the property was not partitioned.  The suit was mainly opposed by the 1st defendant. 

Heard learned counsel for the appellant (1st defendant).  None appears for the plaintiffs.

The relationship between the parties is indicated in the preceding paragraphs.  The plaintiffs i.e. legal heirs of one of the branches, filed the suit for partition and separate possession of the suit schedule properties. 

On the basis of the pleadings before it, the trial Court framed the following issues for its consideration:

i)                    “Whether the plaintiff is entitled to seek for partition of the plaint schedule property?
ii)                  Whether item No.2 of the plaint schedule is absolutely belonged to the defendant No.1?
iii)                 To what relief?”

On behalf of the plaintiffs, PWs.1 to 7 were examined and Exs.A.1 to A.3 were filed.  On behalf of the defendants, DWs.1 to 4 were examined and Exs.B.1 to B.37 were filed. The trial Court passed a preliminary decree through judgment dated 23.11.2001 in respect of items 1 and 2 of the suit schedule properties.

In A.S.No.19 of 2002, filed by the 1st defendant, the lower Appellate Court framed the following point for its consideration and dismissed the appeal:

i)                    “Whether the finding of the trial Court that Lot No.II house property of the plaint schedule property liable for partition is liable to be set aside?”
  

There existed three main branches in the family.  It is stated that the eldest of the brothers - Gudivada Peda Tammunaidu, died intestate leaving behind him his wife and son.  The plaintiffs are the children of the 2nd brother, whereas defendants 1 to 4 are said to be the legal representatives of the third brother.

The contest to the preliminary decree was only by the
1st defendant.  Though he is said to be the illegitimate child of late Yerranna, he is entitled to a share.  It is not his case that either any prior partition in the family has taken place, or an item claimed by him is his
self-acquisition.  The mere fact that he is in long possession of the property, by itself does not take away the property from the purview of partition. 
The trial Court and the lower Appellate Court have considered the matter from the correct perspective.  
No question of law, much less any substantial question of law arises for consideration in this second appeal.

Hence, the second appeal is 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:23.08.2013

GJ/KH

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