An application is said to have been filed under the Right to Information Act, 2005 and the Tahsildar, Warangal has given the information in February, 2009. As per that information the property is in the name of Tallapalli Seetharamulu and he is, evidently, the father of the plaintiff and Solemn. The particulars of the pahanies of the years 1054-55, 1966-67, 1970-71 and 1986-87 were given and they show the names of the plaintiff and also Solemn. Furthermore, the said information sought for provided goes to show that the 1st respondent has got mutated in the record in the year 1987-88. It also further goes to show that the particulars of the partition between Solemn and the plaintiff and also the declarations filed by the brothers and also the pass books were filed. The information is sought with regard to the schedule property and it discloses that the property was ancestral. This information cuts at the root of the claim of the defendants that the property is the self-acquired property of Solemn. Evidently, these documents are public documents and also relevant for determination of the rights of the parties by proving the same. The plea of the defendants is found to be false from these documents. Furthermore, the pahanies relating to the suit numbers were given and as rightly contended by the learned counsel for the appellant, the pahanies relied on by the lower Court with regard to the recording of enjoyment under Exs.B-1 to B-16 does not completely relate to the suit schedule property. Therefore, in view of the above circumstances, the judgment and decree passed by the lower Court cannot be sustained and the defendants have failed to prove that the property is the self-acquired property of Solemn and on the other hand, the additional evidence sought to be produced and information given by the revenue authorities clearly show that the property is joint property of both the brothers and it is for the defendants to show as to whether this property was divided or not and if not divided as to how they are exclusively entitled to the property. The fact that there are some other properties in the possession of the brothers as shown by declarations Exs.A-1 and A-2 is a circumstance to hold that the brothers have succeeded to the property of their father. Therefore, the application to receive the additional evidence in A.S.M.P.No.1445 of 2010 is allowed and the judgment and decree of the lower Court is set aside and the matter is remanded to the lower Court for giving opportunity to both the parties to adduce further evidence and for the appellant to prove the documents filed as additional evidence before this Court. The lower Court shall dispose of the suit within four months from the date of this judgment. No costs.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

APPEAL SUIT No. 1078 of 2000

JUDGMENT:

       

        The plaintiff in O.S.No.103 of 1996 on the file of the II Additional Senior Civil Judge, Warangal is the appellant herein.  The suit was one filed for partition of the schedule properties and the allotment of half share to the plaintiff. 

        The allegations in the plaint goes to show that the plaintiff is the younger brother of one late Solemn, who died on 27.07.1991 and the defendants are the legal representatives of Solemn.  By the date of death of Solemn, there was partition of some of the agricultural lands and the suit schedule properties, which are shown in A to E schedules, are kept joint.  When the plaintiffs demanded for partition of the properties and the 1^st defendant, who is managing the properties, promised but failed.  Hence, the suit. 

        The 1^st defendant filed a written statement contending that the properties are not joint properties of the plaintiff and Solemn.  The parties are Indian Christians and there is no question of Hindu joint family and acquiring rights of ancestral property by birth.  Late Solemn was the absolute owner of the schedule property and the defendants have inherited the properties.  The Court fee paid is not correct and the entries if any in the revenue records will not confer any title.  Therefore, the 1^st defendant pleaded for dismissal of the suit. 

        The other defendants remained ex parte. 

        On the basis of the above pleadings, the necessary issues have been framed for trial. 

        On behalf of the plaintiff, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-12 and on behalf of the defendants, D.W.1, who is the 1^st defendant, was examined and marked Exs.B-1 to
B-16.

        After considering the evidence on record, the learned Principal Subordinate Judge, Warangal found that the parties are not Christians and the properties are joint properties liable for partition and consequently passed a decree for partition. 

        Aggrieved by the said judgment and decree dated 24.01.2000, the present appeal is filed.  Pending disposal of the appeal, A.S.M.P.No.1445 of 2010 was filed to receive additional evidence of the certified copies of the pahanies and also the information given by the Tahsildar dated 05.03.2009 as evidence, which is opposed by the learned counsel for the respondents. 

        The points that arise for consideration are:

1.                Whether there are sufficient grounds to receive additional evidence?

2.                Whether the plaintiff is entitled for partition of the schedule properties?

3.                Whether the judgment and decree passed by the lower Court is legal and sustainable?

POINTS:

        The first point to be considered is as to whether the parties are Hindus or whether they are Christians.  P.W.1 asserted that though their names indicate that they are Christians but they are Harizans and they follow the faith of Christianity.  In fact, D.W.1, who is the 1^st defendant, has specifically admitted in the chief examination itself that they belong to Harizan Community and they are Hindus.  That being so, the contention of the defendants that there is no joint family property or joint succession is not tenable and consequently they cannot claim any exception.  Therefore, it is to be held that in view of the evidence of P.W.1 and also the admission of D.W.1, the parties are Hindus and they are governed by the Hindu Law of Succession. 

        The further point for consideration is whether the properties are the ancestral properties of the plaintiff and Solemn and whether they were kept joint having partitioned some of the properties.  The contention of the 1^st defendant is that the suit lands are the self-acquired and absolute properties of their father Solemn.  Before going into the merits, it is useful to see the particulars of the schedule properties.  Item Nos.1 and 2 are
Ac.0-18 guntas of land are located in Sy.No.1/A corresponding to old Sy.No.938/A; item No.3 is Ac.0-33 guntas of dry land in Sy.Nos.27/C and 28/B corresponding to old Sy.No.271/C and 272/G; item No.4 is Ac.0-10 guntas of land in Sy.No.384/B corresponding to old Sy.No.150/B and item No.5 is Ac.0-20 guntas of land in Sy.Nos.387/A and 386/E corresponding to old Sy.Nos.149/C and 149/E.  The evidence of D.W.1 clearly shows that there is no document to show that the schedule properties are the self-acquired properties of his father.  It is not in dispute that the land in Sy.No.1 was acquired by the Government and a reference for enhancement was made and under Ex.A-11, which is the order in O.P.No.180 of 1990, the plaintiff and Solemn were given equal apportionment of the compensation in Sy.No.1.  The lower Court found that having pleaded a prior partition, the burden is on the plaintiff to show that the properties are kept joint and it is also the burden of the plaintiff to show as to what were the properties earlier partitioned.  There is also no proof of the ancestral acquisition of the properties and consequently the suit is liable to be dismissed.  It is to be mentioned that the lower Court has found that Exs.A-1 and A-2 do not refer to the suit schedule properties, which evidently is incorrect.  In fact, they do contain the lands mentioned in the above survey numbers, which were referred and the declarations were said to have been filed by the plaintiff and Solemn.  That being so, it is difficult to believe that the brothers have not shown the extents of properties in the declaration.  Apart from it, the existence of other landed property also is established from Exs.A-1 and A-2 probablising the earlier partition.  It is not known as to how those properties were owned by the brothers.  It is not in dispute that Solemn was the elder member and the payments of any cist or tax in his name will not in any way conclusively establish exclusive right of the Solemn.  The lower Court has relied very much on Exs.B-1 to B-16, which are from the year 1975-76.  It cannot also be lost sight that D.W.1, who is working in the Revenue Department and consequently the payment of tax in the name of Solemn is not conclusive and is exclusive right.  In this connection, the additional evidence sought to be filed by the counsel for the plaintiff-appellant has a great bearing. 

An application is said to have been filed under the Right to Information Act, 2005 and the Tahsildar, Warangal has given the information in February, 2009.  As per that information the property is in the name of Tallapalli Seetharamulu and he is, evidently, the father of the plaintiff and Solemn.  The particulars of the pahanies of the years 1054-55, 1966-67, 1970-71 and 1986-87 were given and they show the names of the plaintiff and also Solemn. Furthermore, the said information sought for provided goes to show that the 1^st respondent has got mutated in the record in the year 1987-88.  It also further goes to show that the particulars of the partition between Solemn and the plaintiff and also the declarations filed by the brothers and also the pass books were filed.  The information is sought with regard to the schedule property and it discloses that the property was ancestral.  This information cuts at the root of the claim of the defendants that the property is the self-acquired property of Solemn.  Evidently, these documents are public documents and also relevant for determination of the rights of the parties by proving the same.  The plea of the defendants is found to be false from these documents.  Furthermore, the pahanies relating to the suit numbers were given and as rightly contended by the learned counsel for the appellant, the pahanies relied on by the lower Court with regard to the recording of enjoyment under Exs.B-1 to B-16 does not completely relate to the suit schedule property.  Therefore, in view of the above circumstances, the judgment and decree passed by the lower Court cannot be sustained and the defendants have failed to prove that the property is the self-acquired property of Solemn and on the other hand, the additional evidence sought to be produced and information given by the revenue authorities clearly show that the property is joint property of both the brothers and it is for the defendants to show as to whether this property was divided or not and if not divided as to how they are exclusively entitled to the property.  The fact that there are some other properties in the possession of the brothers as shown by declarations Exs.A-1 and A-2 is a circumstance to hold that the brothers have succeeded to the property of their father. 

Therefore, the application to receive the additional evidence in A.S.M.P.No.1445 of 2010 is allowed and the judgment and decree of the lower Court is set aside and the matter is remanded to the lower Court for giving opportunity to both the parties to adduce further evidence and for the appellant to prove the documents filed as additional evidence before this Court.  The lower Court shall dispose of the suit within four months from the date of this judgment.  No costs.

________________________

N.R.L.NAGESWARA RAO, J

DATE: 18-10-2011

MR

 

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

APPEAL SUIT No. 1078 of 2000

 

DATE: 18-10-2011

MR