suit for division of suit schedule properties into six equal shares by metes and bounds and allot one such equal share to the first plaintiff and three of such shares to the plaintiffs 2 to 5 and direct the defendants to render accounts for mesne profits for the first item of the suit schedule properties.
HIGH COURT OF ANDHRA PRADESH
TUESDAY ,THE SECOND DAY OF JANUARY
TWO THOUSAND AND TWENTY FOUR
PRSENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO
FIRST APPEAL NO: 424 OF 2005
Between:
1. PALLINTI SESHAMA NAIDU (DIED) & 9 ORS. S/o. Subba Naidu,
Cultivation
R/o. Kobaka Village, Yerpadu Mandal.
2. Pallinti Anasuyamma, W/o. Venkatasubba Naidu,
Cultivation
R/o. Gabachenu, Konathaneri Post,
Thottambedu Mandal.
3. Pallinti Suresh, S/o. Venkatasubba Naidu,
Cultivation
R/o. Gabachenu, Konathaneri Post,
Thottambedu Mandal.
4. M. Santhamma, W/o. Ramachandra Naidu,
House wife
R/o. Mohan Babu Engineering College Complex,
Rangampeta, Chandragiri Mandal.
5. R. Vani, W/o. Satyam,
House wife
R/o. Mohan Babu Engineering College Complex,
Rangampeta, Chandragiri Mandal.
6. Smt. P. Subbamma W/o. Late Seshamm Naidu
7. Nuthalapati Bharathi W/o. Chandra Mouli Naidu
D.No.570, Balaji Colony, Tirupati.
8. P. Prakash S/o. Late P. Seshama Naidu
R/o. Kobaka Village,
Yerpedu Mandal, Chittoor dist.
9. Muppalla Meena W/o. M. Markandeyalu Naidu
r/o. G.N. Kandriga Village, Thottambedu Mandal,
Chittoor dist.
10. P. Bhaskar S/o. Late Seshamma Naidu
R/o. Kobaka Village, Yerpedu Mandal, Chittoor Dist.
A- 6 to 10 are bt on rec a s LRs of dec A-1 vide C.O. Dt.20.9.13 in ASMP1687/2013
...PETITIONER(S)
AND:
1. PALLINTI SANJEEVI NAIDU (DIED) & 13 ORS. S/o. Subba Naidu,
Cultivation
R/o. Kobaka Village,
Yerpedu Mandal,
Chittoor District.
11. Pallinti Subrahmanyam Naidu,(died) per LRs RR 6-8 S/o. Chengama
Naidu,
Contractor
R/o. D.No.20-1-415/B-1, Subash Nagar,
Tirupathi,
Chittoor District.
2024:APHC:1
12. Pallinti Indrasena Naidu, S/o. Chengama Naidu,
Contractor
Opp: Rajeswari Temple, Nellore,
Nellore District.
13. Noothalapati Suseelamma, W/o. Venkatappa Naidu,
Cultivation
R/o. Kobaka Village,
Yerpedu Mandal,
Chittoor District.
14. Noothalapati Surya Naidu, S/o. Venkatappa Naidu,
Cultivation
R/o. Kobaka Village,
Yerpedu Mandal,
Chittoor District.
15. P. sulochana rep. By its Public Prosecutor,
High Court of A.P., at Hyderabad.
16. P. suneel S/o P. Lingamaiah
Business
R/o Tarnaka
Hyderabad
17. M. sureska RR6 to 8 are brought on record as lrs of deceased R-2 as
per c.o.dt:29-9-2011 made in ASMP-2166/2011.
18. P. Nagaraju Naidu S/o. P. sanjiv Naidu, Occ: Agrl.
19. P. Bhupathi Naidu S/o. P. Sanjiv Naidu
Occ: Agrl.
20. P. Viswanadha Naidu S/o. P. Snjiv Naidu
Occ: Agrl.
21. Smt. G. REvathi W/o. G. Madhav Rao, Occ: Agrl.
RR- 9 to 12 R/o. Kobaka Village, Yerpedu Mandal, Chittoor Dist.
22. Smt. N. Indhira W/o. N Ramamurthy Naidu
R/o. Flat No. 401, lG.S. ARchean, Plot No. 118, Navanirman Nagar, Road
No. 71, Jubille Hills, Hyderabad.
23. Smt. D. Drakshyani W/o. Dama Seshadri Naidu
C- 29, R/o. Flat No. 401, lG.S. ARchean, plot No.118, Navanirman Nagar,
Road NO.71, Jubilee Hills, Hyd.
RR- 9 to 14 are bt on rec as LRs of dec R-1 vide C.O. dt.20-9-13 in ASMP1697/2008
...RESPONDENTS
Counsel for the Petitioner(s): N PRAMOD
Counsel for the Respondents: A CHANDRAIH NAIDU
The Court made the following: ORDER
2024:APHC:1
THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO
A.S.M.P.NO.591 OF 2013
IN / AND
APPEAL SUIT No.424 OF 2005
JUDGMENT: -
This Appeal, under Section 96 of the Code of Civil
Procedure [for short ‘the C.P.C.’], is filed by the
Appellants/plaintiffs challenging the Decree and Judgment,
dated 25.03.2005, in O.S. No.41 of 1999 passed by the learned
IV Additional District Judge, Tirupati [for short ‘the trial Court’].
The Respondents herein are the defendants in the said Suit.
2. The Appellants/Plaintiffs filed the above said suit for
division of suit schedule properties into six equal shares by
metes and bounds and allot one such equal share to the first
plaintiff and three of such shares to the plaintiffs 2 to 5 and
direct the defendants to render accounts for mesne profits for
the first item of the suit schedule properties.
2024:APHC:1
2
3. Both the parties in the Appeal will be referred to as they
are arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.41 of 1999,
are as under:
i) Late Sri P.Nagappa Naidu was the common ancestor. He
had two sons viz., Subba Naidu and Pedda Seshama Naidu.
Both of them passed away leaving behind their successors.
Late P.Subba Naidu and late Pedda Seshama Naidu during
their life time members of undivided Hindu joint family and
possessed considerable movable and immovable properties.
Late P.Subba Naidu had four sons namely Sanjeevi Naidu (first
defendant), Chengama Naidu, Venkatappa Naidu and
Seshama Naidu(first plaintiff). Late Pedda Seshama Naidu had
one son namely Venkata Subba Naidu. (2nd plaintiff is the wife
and plaintiffs 3 to 5 are the children of said Venkata Subba
Naidu). (defendants 2 and 3 are the sons of late Chengama
Naidu). Late Venkatappa Naidu left the joint family and he was
adopted by N.Achama Naidu. The whole joint family consisted
2024:APHC:1
3
of plaintiffs 1 to 5 and defendants 1 to 3 as co-parceners.
Venkata Subba Naidu died in the year 1998 and the plaintiffs 4
and 5 became members of joint family. The husband of
defendant No.4 was adopted into another family and defendant
No.5 was adopted by late Venkatappa Naidu and so both are
not entitled any share in the joint family. Defendant Nos.4 and 5
were shown as proforma parties. The joint family members
possessed various types of properties at Kobaka village and
Yerpedu village and the properties at Kobaka village were
already partitioned among the co-parceners and the properties
at Yerpedu village are yet to be partitioned.
ii) The first defendant got prepared partnership deed with
false recitals. After the deaths of Chengama Naidu and
Venkata Subba Naidu, partnership deed was not reconstituted
by adding defendants 2 and 3, plaintiffs 2 to 5 as partners. The
plaintiffs and defendants 1 to 3 are in joint possession of item
No.1 of plaint schedule property i.e., cinema hall. The
defendants in collusion with Nuthalapati Venkatappa Naidu
2024:APHC:1
4
created false documents making it appear that the land of
cinema hall was purchased by Venkatappa Naidu. The plaintiffs,
late Chengama Naidu and late Venkata Subba Naidu were not
acquainted with English language. So, they did not make an
attempt to read the recitals in the partnership deed that was
prepared at the instance of defendant No.1. Defendant No.1
falsely got it mentioned that the first defendant and late
Venkatappa Naidu are entitled for 5/8th share and they allotted
3/8th share to other members of the joint family. The said
property was joint family property and it should not be subject
matter of partnership deed and it will not bind on the members
of joint family.
iii) First defendant and late Venkatappa Naidu were alone in
exclusive possession and enjoyment of the Cinema hall.
Plaintiffs 1 to 5 and defendants 2 and 3 never received their
share of income from the Cinema hall ever since the date of
construction of theatre i.e., 1976. So, defendants 1, 4 and 5 are
2024:APHC:1
5
liable to render the accounts and mesne profits from item No.1
to the members of joint family.
iv) Plaintiffs 1 to 5 and defendants 1 to 3 are entitled the
shares in item No.2 of the plaint schedule i.e., rice mill. The
property mentioned in item No.3 i.e., terraced house was
acquired with the funds of joint family but it was fraudulently
kept in the name of first defendant. First defendant is liable to
account for all the amounts collected by him by sale of trees
and 'kampa' from 1972 onwards. The first defendant took
initiative in all matters relating to joint family and gave false
information regarding ownership of the properties and the
shares of members of joint family to the Revenue authorities
and to the Land Ceiling Authorities. The first plaintiff came to
know about the fraudulent activities of first defendant and gave
legal notice dated 07.06.1999 to the first defendant, enclosing
copies of plaint, to give his consent for amicable partition of the
suit properties. The first defendant sent a reply notice with false
and untenable allegations. In view of the above circumstances,
2024:APHC:1
6
the plaintiffs filed the suit and prayed the court to declare the
plaint schedule properties as joint family properties and divide
the same into six equal shares and to give 1/6th share to the
first plaintiff and three of such equal shares to the plaintiff Nos.2
to 5 and direct the defendants to render accounts for mesne
profits for item No.1 of the plant schedule properties.
5. The first defendant alone filed a written statement. The
brief averments of the written statement filed by the first
defendant are as under: -
i) The first defendant had his own nucleus and his own
source of private income by way doing civil contract works and
by way of doing business in oil engines, etc. However, during
the year 1971, i.e., on 27.07.1971, the members of the said
joint family decided to get separated, as such, they had an
amicable partition of their joint family properties, under a
registered partition deed. The first defendant, the father of
second and third defendants and the first plaintiff signed on it.
2024:APHC:1
7
There were no properties either at Kobaka or at Yerpedu or in
any other place except the properties shown in the partition
deed.
ii) The first defendant, the said N.Venkatappa Naidu, late
P.Chengarma Naidu, the first plaintiff, late Venkata Subba
Naidu, who is the husband of second plaintiff and father of
plaintiffs 3 to 5, wanted to construct a theatre and run the same
at Yerpedu. They formed into partnership business on
15.07.1972 with specific shares allotting 3/8th share to the first
defendant, 1/4th share to late N.Venkatappa Naidu, 1/8th share
to Late P.Chengama Naidu, 1/8th share to the first plaintiff and
1/8th share to late P.Venkata Subba Naidu and executed a
partnership deed on 15.07.1972 with all the terms and
conditions. The shares were allotted as per their investments. A
portion of land was sold by Late N.Venkatappa Naidu in favour
of other members under a sale letter, as a result of which all the
five members have acquired rights and became the owners of
the said site.
2024:APHC:1
8
iii) The first defendant was made the Managing partner to
manage and to maintain the said theatre. Thus, the first plaintiff
was entitled to 1/8th share then. The branch of Venkata Subba
Naidu i.e., plaintiff Nos.2 to 5 were entitled to 1/8th share. Late
Chengama Naidu and after his death, his sons, defendants 2
and 3 were entitled to 1/8
th share, and the defendants 4 and 5
through late N.Venkatappa Naidu were entitled to 1/4
th share
and the first defendant is entitled to 3/8th share. Later on the
defendants 2 and 3, being the sons of late Chengama Naidu
sold 1/16th share to Pallinti Bhupathi Naidu, who is none other
than the son of first defendant. The partnership deed was
reduced into writing and was signed by all the partners on
15.07.1972. As per the said deed, even the first plaintiff, Late
Venkata Subba Naidu and other partners used to submit their
annual returns to the income tax departments with their
signatures separately till 1986. The first plaintiff and Late
Venkata Subba Naidu used to sign in form No.12 up to 1983.
As time progressed, the first defendant with his industry and
2024:APHC:1
9
foresight has gone developing his position economically and
socially, where as the first plaintiff with his spend thrift and
avaricious attitude has lost much of his properties. As a result,
the first plaintiff has developed an unnecessary sibling rivalry
and jealousy against the first defendant.
iv) One fine day, the first plaintiff suddenly and without any
notice and without probable and reasonable cause and without
any justification locked the front door of the picture palace and
thereby prevented the first defendant from running the picture
palace. When all the persuasions of this defendant proved futile,
he was constrained to file a suit O.S.No.47/1993 against the
first plaintiff on the file of Principal District Munsif Court,
Srikalahasti for permanent injunction and for other heads of
relief. After receipt of summons and notices, the first plaintiff
engaged a counsel and filed a petition stating that he would
avail one of the conditions enshrined in the partnership deed,
dated 15.07.1972, to refer the disputes to an arbitrator under
clause 18 of the said partnership deed. So, he did not choose to
2024:APHC:1
10
file any written statement and counter. The said contention of
the first plaintiff was affirmed by the trial court and the High
Court of Andhra Pradesh at Hyderabad. Inevitably, the first
defendant was constrained to withdraw the said suit as not
pressed. Consequently, the first plaintiff filed another suit in
O.S.No.12 of 1997 against the defendant Nos.1, 2, 3, 5 and the
husband of the second plaintiff, on the file of the Subordinate
Judge's Court, Srikalahasti, to appoint an Arbitrator to look into
the disputes pertaining to the picture palace and for other head
of relief. There, in the said suit, the first plaintiff categorically
and unequivocally admitted the existence of the partnership
deed dated 15.07.1972 and respective shares of each partner
of Vijayalakshmi Picture Palace at Yerpedu in pata No.4 of the
plaint in OS.No.12 of 1997. In the midst, the first plaintiff not
pressed the suit, without the permission of the Hon’ble Court to
file a fresh suit on the same cause of action or otherwise. As
such, the said deed of partnership was acted upon.
2024:APHC:1
11
v) Late Venkata Subba Naidu, who is the husband of the
second plaintiff, inherited the properties of his father by name
Seshama Naidu at Kobaka. Later on the land of the said
Venkata Subba Naidu at Kobaka, were exchanged with the
lands of the first defendant and late Chengama Naidu at Vaddi
Kandriga under a registered exchange deed, dated 29.07.1971.
Late Venkata Subba Naidu and his mother Seshamma also
executed a registered relinquishment deed dated 29.7.1971 in
favour of the first defendant, Late Chengama Naidu and the first
plaintiff, stating that they will not have any rights in the then
existing properties and the properties to be acquired in future.
vi) The registered sale deed in the name of the first
defendant and in the name of late N.Venkatappa Naidu are true,
valid and binding upon the other defendants, as well as the
plaintiffs. The registered partition deed executed among the first
defendant, the first plaintiff and the father of defendants 2 and 3
is true, valid and binding upon all the parties. The said partition
deed was acted upon and there are alienations made by the
2024:APHC:1
12
first plaintiff basing on the said partition. The registered
exchange deed and the registered relinquishment deed
executed by late Venkata Subba Naidu and his mother
Seshamna are true, valid and binding upon plaintiffs No.2 to 5.
vii) Late Venkatappa Naidu purchased the item No.2 of the
plaint schedule site and the Venkateswara Rice and Flour Mill
thereon in a running condition, from one Imam Saheb of
Tirupati under the registered sale deed. Subsequently the first
defendant purchased some extent of site and on which he
constructed Visweswara Rice and Flour Mill. After the
completion of the construction of the Rice Mill, first defendant,
Late N.Venkatappa Naidu, Late Chengama Naidu, first plaintiff
and Late Venkata Subba Naidu formed into a partnership
business along with one N.Rama Chandra Naidu of Yerpedu
village to run both the mills together.
viii) The first defendant purchased a portion of item No.3 of the
plaint schedule site, originally, from N.Bathi Naidu and others.
Later in the year 1985 another portion of the site was
2024:APHC:1
13
purchased by the fist defendant from N.Ramachandra Naidu
and others under the Registered Sale deed. Thus, both the
sites exclusively belong to the first defendant, accordingly, they
are self-acquired and separate properties. In the year 1986 the
first defendant constructed an RCC house by borrowing a loan
of Rs.75,000/- from Andhra Bank, Yerpedu and leased out the
same to Andhra Bank itself. All transactions under registered
exchange deed dated 29.07.1971, registered relinquishment
deed dated 29.07.1971 goes to show that registered partition
deed dated 27.07.1971 was came into existence with the
knowledge of all concerned parties including plaintiffs. They are
true and binding on the defendants as well as plaintiffs. The
Land Ceiling Authorities after verifying the declarations
submitted to them passed orders on 28.06.1976 and the said
orders became final. The suit is barred by limitation, the court
fee paid is not correct, the suit is hit by Order 2 Rule 2 C.P.C
and prayed the Court to dismiss the suit.
2024:APHC:1
14
6. Based on the above pleadings, the trial Court framed the
following issues:
(i) Whether the suit is hit by Order 2 Rule 2 CPC?
(ii) Whether suit is barred by time?
(iii) Whether Court fee paid is correct?
(iv) Whether description of the property mentioned in
plaint schedule is correct?
(v) Whether plaintiffs are entitled for partition of
plaint schedule property as prayed for?
(vi) To what relief?
7. During the course of trial in the trial Court, on behalf of the
Plaintiffs, PW1 and PW2 were examined and Ex.A1 to Ex.A6
were marked. On behalf of the Defendant No.1, DW1 to DW3
were examined and Ex.B1 to Ex.B11 were marked.
8. After completion of the trial and hearing the arguments of
both sides, the trial Court dismissed the suit with costs vide its
judgment, dated 25.03.2005, against which the present appeal
2024:APHC:1
15
is preferred by the appellants/plaintiffs in the Suit questioning
the Decree and Judgment passed by the trial Court.
9. Heard Sri N.Pramod, learned counsel for
appellants/plaintiffs and Sri O.Manohar Reddy, learned senior
counsel, representing Sri P.Hemachandra, learned counsel for
respondents 9 to 14 and Sri A.Chandraiah Naidu, learned
counsel for respondent Nos.3, 6 to 8.
10. The learned counsel for the appellants/plaintiffs would
contend that the plaint schedule properties are joint family
properties of plaintiffs and defendants. He would further
contend that after the death of Chengama Naidu and Venkata
Subba Naidu, the partnership was not reconstituted and as
such, the plaint schedule properties are to be treated as joint
family properties. He would further contend that the trial Court
erroneously dismissed the suit instead of decreeing the suit and
the appeal may be allowed. Learned counsel for respondent
Nos.3, 6 to 8 would contend that appeal may be allowed.
2024:APHC:1
16
Respondent Nos.6 to 8 are legal representatives of second
defendant. 3rd respondent is 3rd defendant in the suit.
Defendant Nos.2 and 3 are remained set exparte in the suit.
11. Per contra, learned counsel for respondent Nos.9 to 14
would contend that there was a registered partition deed among
the joint family members under the registered partition deed
dated 27.07.1971 and the suit for partition is not at all
maintainable and on appreciation of the entire evidence on
record, the trial Court rightly dismissed the suit and there is no
need to interfere with the finding given by the trial Court and he
further pleaded that the appeal may be dismissed.
12. Having regard to the pleadings in the Suit and the findings
recorded by the trial Court and in the light of rival contentions
and submissions made on either side before this court, the
following points would arise for determination:
1) Whether the appellants/plaintiffs are entitled the
relief of partition of the plaint schedule
2024:APHC:1
17
properties and mesne profits for item No.1 of
the plaint schedule properties?
2) Whether the decree and judgment passed by the
trial court needs any interference? If so, to what
extent?
13. Point Nos.1 and 2:
The case of the plaintiffs is that late P.Subba Naidu and
late P.Seshama Naidu during their life time members of
undivided Hindu joint family and possessed considerable
movable and immovable properties and both of them died at
about 50 years ago. The plaintiffs further pleaded that late
Venkatappa Naidu left the joint family and he was adopted by
an Achama Naidu and the whole joint family consists of
plaintiffs 1 to 5 and defendants 1 to 3 as co-parceners and
Venkata Subba Naidu died in the year 1998 and the plaintiffs 4
and 5 became members of joint family along with first plaintiff.
They further pleaded that the husband of defendant No.4 was
adopted into another family and defendant No.5 was adopted
by late Venkatappa Naidu and so both are not entitled any
2024:APHC:1
18
share in the joint family, defendant Nos.4 and 5 were shown as
proforma parties. They further pleaded that the joint family
members possessed various types of properties at Kobaka
village and Yerpedu village and the properties at Kobaka village
were already partitioned among the co-parceners and the
properties at Yerpedu village are yet to be partitioned.
14. The relationship in between both the parties is not in
dispute by both sides. The contention of the first defendant
before the trial Court is that the properties were partitioned
between the parties long back and declaration were submitted
to Land Ceiling Authorities about their separate possession and
enjoyment of the respective properties. The respondent Nos.3,
6 to 8 engaged an advocate before this appellate Court and
they supported the case of the appellants. But they were
remained set exparte before the trial Court and they did not
take any defense before the trial Court and they have not
contested the suit proceedings before the trial Court.
2024:APHC:1
19
15. In order to prove the case of the plaintiffs, the first plaintiff
examined himself as PW1. He reiterated the contents of the
plaint in his evidence affidavit as PW1. In cross examination,
he admits that in the year 1971, there was a partition between
the plaintiffs and defendants under a registered partition deed
dated 27.07.1971 and he was a party in that partition deed and
his signature is also there in the said registered partition deed.
He further admits that as per the partition deed they have been
in possession and enjoyment of the properties and he did not
file the said partition deed in the present suit. He further admits
that the plaintiffs 1 to 5 have been residing at Vaddi Kandriga
village and enjoying themselves their share of properties. He
further admits that he exchanged some properties that fell out
of his share in the partition. In his cross examination, he further
admits that he purchased a house from his elder brother at Beri
street in Tirupathi in the year 1972 and the same was
purchased by his elder brother in the year 1956. It seems that
2024:APHC:1
20
after registered partition deed, the first plaintiff purchased the
house property at Beri street in Tirupathi.
16. In the present case, as stated supra, the defendants 2 and
3 were remained set exparte before the trial Court. The first
defendant alone contested in the suit proceedings. As per the
case of the first defendant, the first item of the suit schedule
land in which Vijaya Lakshmi Picture Palace was constructed at
Yerpedu, the same was originally purchased by Nuthalapati
Venkatappa Naidu, the adopted son of Achama Naidu of
Kobaka village, who was not even member of the joint family,
under a registered sale deed in his name and the total extent
purchased by him was Ac.1.00 cents. The first defendant
further pleaded that himself, the said N.Venkatappa Naidu, late
P.Chengama Naidu, the first plaintiff late Venkata Subba Naidu
i.e., the husband of the second plaintiff and father of plaintiffs 3
to 5 wanted to construct a theater and run the same at Yerpedu.
The first defendant further pleaded that they formed into a
partnership business on 15.07.1972 with specific shares
2024:APHC:1
21
allotting 3/8th share to him, 1/4th share to late Venkatappa Naidu,
1/8th share to late P.Chengama Naidu, 1/8th share to first
plaintiff and 1/8th share to late P.Venkata Subba Naidu and
executed a registered partition deed on 27.07.1971 with all the
terms and conditions. He further pleaded that the shares were
allotted as per their investments and the partnership deed was
reduced into writing and was signed by all the partners on
15.07.1972 and as per the said deed even the first plaintiff, late
Venkata Subba Naidu i.e., the husband of second plaintiff and
father of other plaintiffs 3 to 5 submitted their annual returns to
the Income Tax Department with their signatures separately till
1986. The same is not at all disputed by the other side. The
first defendant further pleaded that the first plaintiff suddenly
and without any notice and without probable and reasonable
cause and without any justification locked the front door of the
theater and thereby prevented him for running the picture
palace and therefore, he was constrained to file the suit
OS.No.47 of 1993 against the first plaintiff on the file of
2024:APHC:1
22
Principal District Munsif Court, Srikalahasthi for permanent
injunction and other reliefs.
17. The evidence on record proves that after receipt of the
summons and notice, the first plaintiff herein engaged a counsel
and filed a petition in that suit stating that he would avail one of
the conditions mentioned in the partnership deed to refer the
disputes to an arbitrator under clause 18 of said partnership
deed and so he did not file any written statement and counter.
The said contention of the first plaintiff herein was affirmed by
the trial Court and the composite High Court of Andhra Pradesh
at Hyderabad. The same is not at all disputed by the plaintiffs.
The first defendant further pleaded that in view of the aforesaid
reasons he constrained to withdraw the said suit as not-pressed.
The evidence on record further proves that the first plaintiff
herein filed another suit in OS.No.12 of 1997 against him and
the defendants 2, 3 and 5 herein and the husband of the
second plaintiff on the file of Sub Ordinate Judge Court,
Srikalahasti to appoint an arbitrator to look into the disputes
2024:APHC:1
23
pertaining to the Vijaya Lakshmi picture palace and in the said
suit, the first plaintiff categorically admitted the existence of
registered partnership deed dated 15.07.1972 and respective
shares of each partner of Vijaya Lakshmi Picture Palace at
Yerpedu in para No.4 of the plaint in OS.No.12 of 1997. The
aforesaid suit in OS.No.12 of 1997 filed by the first plaintiff
herein was dismissed as not-pressed and he has not sought
any permission from that Court to initiate a fresh suit on the
same cause of action or otherwise. The above circumstances
which are not disputed by the defendant No.1 clearly goes to
show that there was a registered partnership deed in respect of
item No.1 of the plaint schedule cinema theater and the shares
were also allotted as per their investments as per registered
partnership deed dated 15.07.1972.
18. Furthermore the first defendant herein filed a suit in
OS.No.47 of 1993 against the first plaintiff herein at
Srikalahasthi for permanent injunction, in that suit the plaintiff
No.1 herein specifically pleaded that the said suit is not at all
2024:APHC:1
24
maintainable, in view of clause 18 of the said partnership deed,
the disputes has to be referred to arbitrator and the said matter
went up to the composite High Court of Andhra Pradesh and
the same was affirmed by the composite High Court of Andhra
Pradesh, with a finding that the dispute in between the partners
has to be referred to an arbitrator under clause 18 of the
partnership deed. Further more the material on record reveals
that the first plaintiff herein filed another suit O.S.12 of 1997
against the first defendant and other defendants herein and
husband of second plaintiff at Srikalahasthi to appoint an
arbitrator to look into the disputes pertaining to the item No.1 of
the plaint schedule property and in the above said suit, the first
plaintiff herein admitted the existence of registered partnership
deed dated 15.07.1972 and respective shares of each partner
of Vijaya Lakshmi Picture Palace in the plaint itself and during
the course of trial the first plaintiff herein is not pressed the suit
without any permission of the said Court to file a fresh suit on
the same cause of action or otherwise. It is relevant to say
2024:APHC:1
25
some of the admissions made by the PW1 in his cross
examination itself, PW1 admitted in cross examination itself that
in the registered partnership deed there is a clause that an
arbitrator should be appointed to settle the disputes between
the parties. He would further admits that he filed a suit OS.12 of
1997 on the file of Senior Civil Judge Court, Srikalahasthi for
appointment of arbitrator and the material on record further
reveals that he filed a memo, under Ex.B9, for not pressing the
suit.
19. Further more Ex.B1 goes to show that the first plaintiff
sold Ac.0.76 cents of land at Kobaka village to one Nagaraja
Naidu under Ex.B1. PW1 further admits that he locked the
Vijaya Lakshmi Picture Palace in the year 1993 and the
cinemas are not exhibiting in the theater and ever since the lock
of the theater is with him. The evidence of PW1 fails to
establish that item No.2 and 3 of the plaint schedule properties
are joint family properties, the same were purchased out of the
joint family funds. Therefore, for the reasons stated above, it is
2024:APHC:1
26
clear that so far as item No.1 of the plaint schedule property
cinema theater is concerned there was a registered partnership
deed in between all the partners i.e., in between the plaintiffs
and defendants and respective shares were allotted under the
said registered partnership deed with all terms and conditions
and the shares were allotted to each partner as per their
investments and there was a clause 18 in the registered
partnership deed, accordingly, any dispute under the
partnership deed has to be referred to an arbitrator which was
affirmed by the composite High Court of Andhra Pradesh in
OS.No.47 of 1993, the same is not at all disputed by the both
the parties. Therefore, the appellants/plaintiffs cannot go back
by the terms and conditions of the registered partnership deed.
Therefore, the suit for partition and to render accounts for
mesne profits for item No.1 of the plaint schedule property is
not at all maintainable. As stated supra, the evidence of PW1
fails to establish that item Nos.2 and 3 of the plaint schedule
2024:APHC:1
27
properties are joint family properties and the same have been
purchased out of joint family funds.
20. PW2 is another witness of the plaintiffs. She is none other
than the sister of wife of PW1. In cross examination, she
admits that she does not know who purchased the properties
and how the properties came into their custody and she does
not know who is looking after the lands at Kobaka and Yerpedu
villages and she does not know the shares of each defendant
as to how much of amount was paid for construction of theater
at Yerpedu. She pleaded ignorance about the total cost of
construction and so also how much amount was paid for
construction of cinema theater and about relevant documents
and she also pleaded ignorance about the alleged demand
made by PW1 for partition. The admissions of PW2 goes to
show that she is not aware about the acquisition of the plaint
schedule properties. PW2 further stated in her evidence in
cross examination that she has not filed any document to show
that the properties are joint family properties and she does not
2024:APHC:1
28
know whether there is a partition deed between PW1,
defendant No.1 and other brothers and there is a document in
respect of maintenance of theater. The evidence of PW2 clearly
goes to show that she has no knowledge about the properties
of the parties concerned. To prove their case the plaintiffs
relied on Ex.A1 to Ex.A6. Ex.A1 to Ex.A6 are exchange of
notices. The same are not helpful to support the case of the
plaintiffs that the plaint schedule properties are joint family
properties.
21. The first defendant himself examined as DW1. As per his
evidence, the item No.2 of the plaint schedule property
comprises two Rice Mills namely Venkateswara Rice and Flour
Mill and Visweswara Rice and Flour Mill. Late Venkatappa
Naidu purchased the site and the Venkateswara Rice and Flour
Mill thereon in a running condition from one Imam Saheb under
a registered sale deed and subsequently the first defendant
purchased some extent of site on which he constructed the
Visweswara Rice and Flour Mill. He further deposed in his
2024:APHC:1
29
evidence that after completion of construction of rice mill, the
first defendant, late Venkatappa Naidu, Chengama Naidu, the
first plaintiff and Venkata Subba Naidu formed into a
partnership business along with N.Ramachandra Naidu of
Yerpedu village to run both the mills together. As stated supra,
there was a registered partition deed in between both the
parties and share of each party is clearly mentioned in the said
registered partition deed itself. As per his evidence there was
an agreement in between the partners to that effect that each
partner was entitled to run the mills for one year as per 1/8th
share and the same was decided by way of lottery. It clearly
shows that there was an arrangement by way of agreement
between all the partners of the partnership concerned.
22. He further deposed that so far as third item of the plaint
schedule property concerned, he purchased a portion of the site
originally from N.Bathi Naidu and others, later on in the year
1985 another portion of the site was purchased by him from
N.Ramachandra Naidu and others under a registered sale deed
2024:APHC:1
30
and thus both the sites exclusively belong to him, those are his
self acquired properties. He further deposed that in the year
1986 he constructed an RCC house by borrowing a loan of
Rs.75,000/- from Andhra Bank, Yerpedu and leased out the
same to Andhra Bank itself and the market value of the site and
terraced house on first floor easily fetch Rs.4,00,000/- as per
the existing market value in that locality. Therefore, the
plaintiffs failed to discharge their burden to prove their case. To
disprove the case of the plaintiffs, the first defendant relied on
the evidence of DW1 to DW3 and Ex.B1 to Ex.B11.
23. Learned counsel for appellants placed a reliance in
Addanki Narayanappa v. Bhaskara Krishnappa (Dead) his
legal heirs1
, in that decision it was held as follows:
In the case before us, as also in Samuvier’s case ILR 55 Mad.72
the document cannot be said to convey any immovable property by
a partner to another expressly or by necessary implication. If we
may recall, the document executed by the Addanki partners in
favour of the Bhaskara partners records the fact that the
partnership business has come to an end and that the latter have
1 AIR (SC) 1966 0 1300
2024:APHC:1
31
given up their share in "the machine etc. and in the business" and
that they have "made over same to you alone completely by way of
adjustment". There is no express reference to any immovable
property herein. No doubt, the document does recite the fact that
the Bhaskara family has given to the Addanki family certain
property. This, however, is merely a recital of a fact which had
taken place earlier. To cases of this type the observations of
Kekewich,J., which we have quoted do not apply. The view taken in
Samuvier’s case, ILR 55 Mad.72: seemed to commend itself to
Varadachariar, J. in Thirumalappa v. Ramappa, (AIR 1938 Mad.133)
but it was reversed in Ramappa v. Thirumalappa, (AIR 1939
Mad.884).
Another reliance is placed by the learned counsel for
appellants in Addanki Narayanappa and others v. Bhaskara
Krishnappa and others 2
, in that decision, Full Bench of
composite High Court of Andhra Pradesh held as follows:
“The interest of a partner in partnership assets comprising of
movable and immovable property cannot be regarded as a right or
interest in immovable property within the meaning of Section
17(1)(b) of the Registration Act”.
2 AIR (AP) 1959 380
2024:APHC:1
32
The learned counsel for appellants further relied on a
judgment in Vathsala Manickavasagam vs. N.Ganesan3
, in
that decision, the Apex Court held as follows:
Having heard the learned counsel for the respective parties, we are
of the considered opinion that at the forefront, it will be necessary to
consider the effect of Ex.A-17, in as much as, the said document is
fully controlled by Section 17 of the Evidence Act. Section 17 of the
Evidence Act reads as under:
“S.17. Admission defined:- An admission is a statement, oral or
documentary or contained in electronic form, which suggests any
inference as to any fact in issue or relevant fact, and which is made
by any of the persons, and under the circumstances, hereinafter
mentioned.”
In the case on hand, there was an ample evidence to
prove that there was an earlier partition under registered
partnership deed in between both the parties. The same is
admitted by the plaintiffs. As stated supra, the item No.1 of the
plaint schedule property is relates to the cinema theater at
Yerpedu and there was a partnership account in the said
business and the share of each partner was divided under the
3 2013(9) SCC 152
2024:APHC:1
33
registered partnership deed and so also there was a specific
condition in the registered partnership deed that any dispute
arose under the partnership deed, has to be referred to an
arbitrator. With regard to item Nos.2 and 3 of the plaint
schedule property are concerned the appellants failed to prove
that from out of the ancestral nucleus the first defendant
acquired the item Nos.2 and 3 of the plaint schedule property.
Furthermore, the registered partition deed is admitted by the
appellants and the names of the shares were also mutated in
the revenue records and each sharer also filed a declaration
before the Land Acquisition Authority. Further more, the said
partition and declaration before the Urban Land Ceiling
Authority is admitted by the first plaintiff in his evidence itself.
There was a clear admission of the appellants that initially the
first defendant filed a suit vide OS.No.47 of 1993 at Principal
District Munsif Court, Srikalahasthi for permanent injunction and
other reliefs with regard to item No.1 of the plaint schedule
property and after receipt of the suit summons and notices, the
2024:APHC:1
34
first plaintiff herein, who is the defendant in the said suit
engaged a counsel and filed a petition in that suit stating that he
would have availed one of the conditions incorporated in the
registered partnership deed dated 15.07.1972 to refer the
disputes to an arbitrator under clause 18 of the partnership
deed and that the fist plaintiff herein did not choose to file any
written statement and the same was affirmed before the trial
Court and so also upheld by the composite High Court of
Andhra Pradesh. The same is admitted by the appellants.
24. The material on record reveals that there was a deed of
partnership in respect of item No.1 of the plaint schedule
property i.e., cinema theater. The said partnership deed is bind
on all the parties. The plaintiffs herein themselves took a plea in
earlier suit O.S.No.47 of 1993 that any dispute arose under the
partnership business has to be referred to arbitrator and the
same has to be dealt by the arbitrator and the said dispute went
up to the composite High Court of Andhra Pradesh and the
same was upheld by the composite High Court of Andhra
2024:APHC:1
35
Pradesh. The appellants have to approach the proper forum for
dissolution of partnership business. Therefore, the present suit
for partition of item No.1 of the plaint schedule property is not at
all maintainable.
25. Another important circumstance to disbelieve the case of
the appellants is that the appellant No.1 herein filed suit vide
OS.No.12 of 1997 against the defendants and husband of
second plaintiff on the file of Sub Ordinate Judge Court,
Srikalahasthi to appoint an arbitrator to look into the disputes
pertaining to the item No.1 of the plaint schedule property and
in the said suit, the first appellant herein admitted the existence
of partnership deed and so also respective shares of each
partner of Vijaya Lakshmi Picture Palace at Yerpedu and the
first appellant herein sought permission of the said Court to
withdrawn the said suit, but he has not sought any permission
from that Court to file a fresh suit. The same is not at all
disputed by the appellants herein. As stated supra, therefore,
2024:APHC:1
36
the present suit for partition in respect of item No.1 of the suit
schedule property is not at all maintainable.
26. As stated supra, to disprove the case of the plaintiffs, the
first defendant relied on the evidence of DW1 to DW3. The
other defendants remained set exparte before the trial Court.
The first defendant examined himself as DW1. He also relied on
the evidence of DW2. As per the evidence of DW2 the plaint
schedule properties are not joint family properties and those are
acquired by first defendant with his own income. Further more,
the evidence of DW2 goes to show that the brothers of DW1
divided from the joint family since 1974. The first defendant
relied on Ex.B1 to Ex.B11. Ex.B1 is the registered sale deed
dated 10.01.1986 executed by first plaintiff in favour of
P.Nagaraju Naidu, Ex.B2 is the relinquishment deed dated
29.07.1971 executed by P.Venkata Subba Naidu and
P.Seshamma to first defendant, first plaintiff and to
P.Chengama Naidu, Ex.B3 is the exchange deed between the
first defendant and first plaintiff dated 29.07.1971, Ex.B4 is the
2024:APHC:1
37
certified copy of registered partition deed among the first
defendant, first plaintiff and P.Chengama Naidu dated
27.07.1971. Ex.B1 to Ex.B3 are the subsequent to the
execution of registered partition deed. Therefore, the Ex.B1 to
Ex.B3 goes to show that Ex.B4 partition deed was acted upon
and both parties separated from the joint family.
27. As per the evidence of DW3, the scheduled mentioned
properties are not the joint family properties of the plaintiffs and
defendants and to his knowledge the joint family of the first
defendant was disrupted about 33 years back and first
defendant is having his own nucleus and getting some income
by doing civil contract works and also doing business in oil
engines. He further deposed that to his knowledge, the first
defendant residing separately for the past 33 years by dividing
the joint family. He further deposed that after dividing from the
joint family, the first plaintiff sold his share to the third parties
and both the parties submitted separate proposals before the
Land Ceiling Tribunal and since 1971 the plaintiffs and
2024:APHC:1
38
defendants are residing separately. The evidence of DW3 goes
to show that since 1971 both the parties are residing separately
and there was an exchange of land alienations and purchases
among the plaintiffs and defendants after execution of
registered partition deed entered by both the parties. In crossexamination, nothing was elicited from DW3 to discredit the
testimony of DW3. The evidence of DW3 supports the case of
the first defendant.
28. Learned counsel for appellants placed another reliance in
Bharat Singh and others vs. Bhagirathi4
, in that decision, the
Hon’ble Supreme Court of India held as follows:
Admissions must be clear if they are to be used against the person
making them. They are substantive evidence by themselves in
view of Sections 17 and 21 of the Evidence Act, though they are
not conclusive proof of the matters admitted. The admissions duly
proved are admissible evidence irrespective of whether the party
making them appeared in the witness box or not and whether such
party when appearing as witness was confronted with those
statements in case it made a statement contrary to those
admissions. The purpose contradicting the witness under Section
145 of the Evidence Act is quite different from the purpose of
4 AIR 1966 SC 405
2024:APHC:1
39
proving the admission. Admission is substantive evidence of the
fact admitted while a previous statement used to contradict a
witness does not become substantive evidence and only serves the
purpose of throwing doubt on the veracity of the witness. Weight to
be attached to an admission made by a party is a matter different
from its use as admissible evidence.
The learned counsel for appellants also relied on another
decision in Ram Sarup Gupta (dead) by L.Rs. vs. Bishun
Narain Inter College and others5
, in that decision it was held
as follows:
In the absence of pleadings, evidence, if any, produced by the
parties cannot be considered. No party should be permitted to
travel beyond its pleadings and all necessary and material facts
should be pleaded by the party in support of the case set up by it.
The object and purpose of pleading is to enable the adversary party
to know the case it has to meet. In order to have a fair trial it is
imperative that the party should state the essential material facts so
that other party may not be taken by surprise.
In the case on hand, there was an ample evidence to
show that the parties have partitioned their properties in the
year 1971 under the registered partition deed and the plaintiffs
5 1987 SCR (2) 805
2024:APHC:1
40
have not placed any evidence to show that the plaint schedule
properties are purchased from out of the joint family funds. It
was alleged by the appellants that item No.1 of the plaint
schedule property i.e., theater building was constructed with the
contribution of the members of the joint family and therefore the
said theater building and the site on which the building was
constructed is a joint family property of plaintiffs and defendants
1 to 3. The appellants further pleaded in the plaint itself that
though the said property belongs to joint family, a false recital in
the partnership deed was made by the first defendant to suit his
case with oblique motive. The alleged oblique motive and the
alleged fraud is not at all proved by the appellants, in fact the
fraud is alleged by the appellants, therefore, the burden is cast
on the appellants to prove the same. But for the reasons best
known to the appellants they have failed to prove the same. As
stated supra, the appellants failed to prove that false recitals
were made in the partnership deed by the first defendant and
the alleged fraud is not at all proved by the appellants.
2024:APHC:1
41
29. It was argued by the learned counsel for appellants that
the existence of partnership business with the proof of sharing
and loss shows that the first plaintiff was running the
management of item No.2 of the plaint schedule property and
placed a reliance in M/s.K.D.Kamath and Company vs.
Commissioner of Income-tax, Bangalore6
. He also placed
another reliance of composite High Court of Andhra Pradesh in
Gannamani Anasuya vs. Parvatini Amarendra Chowdary7
,
in that decision it was held as follows:
It is well established that the partnerships do exist without even a
written deed or work details. Coming together of individuals is
enough. The entitlement to a share and its extent can be
determined as provided under the law or equally or as agreed to
amongst the parties. Normally, difficulties do arise if such question
arises amongst strangers. However, one family knowingly a joint
one, the members /coparceners can open up a venture of the like
nature. Where there is a meet of two minds or more than two and
an intention or participation as such in the activities to be carried,
there is a partnership. It is not necessary, as established already to
have a deed even at the stage of inception. It can commence
without a deed and other terms and conditions can be worked out
and finalized later. Some times, the partners even continue without
6 1971 (2) SCC 873
7 ALD 2010 (6) 234
2024:APHC:1
42
even a deed therefore and still the partners get the benefits of the
profits out of the business carried out in the proportion to which
they agreed upon or as the exigencies arise.
The learned counsel for appellants also placed another
reliance of Apex Court in Purushottam and another Vs.
Shivraj Fine Arts Litho Works and others8
, in that decision it
was held as follows:
“….the partnership having come into existence of which plaintiff 1
was a partner, and he having transferred to the said partnership all
his assets and liabilities of his proprietary concern, he had no
subsisting exclusive right to enforce the liability against the
defendants since such rights as he had as the proprietor vested in
the partnership. He could not therefore either file a suit or claim any
relief in the suit filed by the partnership asserting his right as the
erstwhile proprietor….”
In the case on hand, the registered partition deed and
registered partnership deed in between the plaintiffs and
defendants and father of defendants 2 and 3 was admitted by
the first plaintiff. The specific plea was taken by the plaintiffs in
the plaint itself that the theater building was constructed with
8
(2007)15 SCC 58
2024:APHC:1
43
the contribution of the members of the joint family and therefore
it constitute a joint family and false recital was made by the first
defendant in the partnership deed with an oblique motive. As
stated supra, the same is not at all proved by the appellants by
adducing any cogent evidence before the trial Court. The
appellants also failed to prove that there was joint family
properties which were not partitioned and the joint family
income was utilized for purchase of item Nos.1 to 3 of the plaint
schedule property.
30. The learned counsel for appellants relied on another
decision in Kusam Satyanarayana Reddy and others vs.
Kusam Sambrajyamma (died) per L.Rs.9
, in that decision, the
composite High Court of Andhra Pradesh held as follows:
ORDER 7, Rule 7 of the Code of Civil procedure (for short "the
Code") lays down: "every plaint shall state specifically the relief
which the plaintiff claims either simply or in the alternative, and it
shall not be necessary to ask for general or other relief which may
always be given as the Court may think just to the same extent as if
9 2004(3) ALT 115(DB)
2024:APHC:1
44
it has been asked for. And the same rule shall apply to any relief
claimed by the defendant in his written statement. "
In the aforesaid case, cross objections were filed by
another party, but in the instant case, no cross objections were
filed. Therefore, the facts and circumstances in the cited
decision are different to the instant case. The learned counsel
for appellants relied on another decision in Vulsa
Laxminarayana Vs. Vulsa Bhoodamma and another10
, in the
facts and circumstances in the cited decision are different to the
instant case.
Learned counsel for appellants relied on other judgments
in Prafulla Chandra Karmakar and another vs. Panchanan
Karmakar11
, in Sunita Jain vs. Padma Jain12 and in Ramathal
and others vs. K.Rajamani (dead) through L.Rs13
.
In the case on hand, the appellants specifically pleaded in
the plaint itself that the property in item No.1 of the plaint
10 1994(2) ALT 445
11 AIR 1946 Calcutta 427
12
2019 SCC online MP 2491
13 2023 Live Law (SC) 666.
2024:APHC:1
45
schedule property i.e., cinema theater was constructed with the
contributions of the joint family members and therefore, it is a
joint family property and it is not a partnership asset and the
deed of partnership cannot bind the members of the joint family.
As stated supra, the registered partnership deed is admitted by
the appellants herein before the earlier suit proceedings before
the trial Court and in that civil case, the appellants herein
pleaded that there was a registered partnership deed and there
was a specific clause in the said partnership deed that the
dispute with regard to the registered partnership deed, among
the partnership members, has to be dealt by the arbitrator only
and civil Court jurisdiction is barred. Now the appellants cannot
took a different stand that the civil Court is having jurisdiction to
decide the partnership dispute between both the parties. It is
not in dispute by both the parties that the share of each partner
is also incorporated in the registered partnership deed and the
same is admitted by both the parties in the case on hand.
2024:APHC:1
46
31. It is the specific case of the appellants that item No.2 of
the plaint schedule property is undivided joint family property
and the property of item No.3 of the plaint schedule property
was purchased by the first defendant from out of joint ancestral
nucleus. A specific defense was taken up by the first defendant
in the written statement itself that he purchased the item Nos.2
and 3 of the plaint schedule property with his own income and
there was a registered partition deed in between both the family
members in the year 1971 itself. The said registered partition
deed is not at all disputed by the appellants. The said partition
deed is admitted by the appellants herein. Therefore, in the
absence of any proof that it is a joint family property nor any
evidence to show that the land is belongs to the joint family, the
contention of the appellants cannot be accepted. In the case
on hand, the appellants failed to prove that the properties are
purchased out of joint family funds and in the absence of any
evidence, the appellants/plaintiffs are not entitled any relief.
2024:APHC:1
47
32. The learned counsel for first respondent/ first defendant
placed a reliance in Kalyani (dead) by L.Rs. vs. Narayanan
and others14 , in the said decision, the Apex Court held as
under:
Partition can be partial qua person and property but a partition
which follows disruption of a joint family status will be amongst
those who are entitled to a share on partition. On death of karappan,
Kesavan, the son of the second wife obtained a physical partition of
the property, took his own share and left the family. There was first
a disruption of the joint family by specifying the shares in Ext. P-1.
Till disruption of joint family status takes place no coparcener can
claim what is his exact share in coparcenary property. It is liable to
increase and decrease depending upon the addition to the number
or departure of a male member and inheritance by survivorship. But
once a disruption of joint family status takes place, coparceners
cease to hold the property as joint tenants but they hold as tenantsin-common. Looking to the terms of Ext. P-1 there was a disruption
of joint family status, the shares were specified and vested liabilities
and obligations towards the family members were defined and
imbalance out of unequal division was corrected. This certainly has
the effect of bringing about disruption of joint family status and even
if there was no partition by metes and bounds and the coparceners
continued to remain under the same roof or enjoyed the property
without division by metes and bounds, they did not hold as joint
tenants unless re-union is pleaded and proved.
14 1980 0 AIR(SC) 1173
2024:APHC:1
48
Here, in the case on hand, both parties have partitioned
their properties way back in the year 1971 and admittedly there
was a registered partition deed in between both the parties.
The specific plea of the first respondent in the present case is
that in the year 1971 the members of the joint family decided to
get separated. As such they had an amicable partition of their
joint family properties and registered partition deed was
executed on 27.07.1971, the first defendant, father of
defendants 2 and 3 and first plaintiff signed on the said
registered partition deed. A specific plea was taken by the first
respondent/first defendant in the written statement itself that
there was no joint family property either at Kobaka village or at
Yerpedu village or in any other place except the properties
shown in the partition deed. Therefore, the burden is always on
the appellants/plaintiffs to disprove the case of the first
defendant. For the reasons best known to the appellants/
plaintiffs, they failed to discharge their burden to prove that from
2024:APHC:1
49
out of the ancestral nucleus entire plaint schedule properties
were purchased by the parties.
33. The material on record reveals that the first defendant,
N.Venkatappa Naidu, late Chengama Naidu i.e., father of
defendants 2 and 3, first plaintiff and late Venkata Subba Naidu
i.e., father of plaintiffs 3 to 5 wanted to construct a theater at
Yerpedu in item No.1 of the plaint schedule property. Originally,
the site was purchased by one Venkatappa Naidu and he is not
the member of the joint family and later on all the above
persons formed into a partnership body on 15.07.1972 and
specific shares were allotted to each party in the said registered
partnership deed itself and 1/4th share in the cinema hall was
allotted to N.Venkatappa Naidu and the shares were allotted as
per their investments. As stated supra, the appellant No.1 in
the earlier proceedings before the Court at Srikalahasthi in
OS.No.47 of 1993 has taken a defense that the suit has to be
referred to arbitrator under clause 18 of partnership deed. The
said suit was filed by the first defendant herein for claiming
2024:APHC:1
50
relief of permanent injunction against the first plaintiff herein in
respect of cinema hall situated in item No.1 of the plaint
schedule property. As stated supra, the defense of the
appellant No.1 in that suit proceedings are to refer the matter to
the arbitrator under clause 18 of the registered partnership
deed. The same was affirmed by the trial Court and the same
was upheld by the composite High Court of Andhra Pradesh.
34. The material on record reveals that the appellant No.1
filed OS.No.12 of 1997 against the first defendant herein and
other defendants to appoint an arbitrator to look into the
disputes pertains to the item No.1 of the plaint schedule
property i.e., cinema theater, in the said suit the appellant No.1
herein admitted about the existence of partnership deed dated
15.07.1972 and respective shares of each parties of Vijaya
Lakshmi Picture Palace were also mentioned in the plaint itself
and in the trial Court, the first plaintiff herein not-pressed the
said suit without seeking permission of the Court to institute a
fresh suit on the same cause of action or otherwise. Exs.B5,
2024:APHC:1
51
B6, B9 to B11 proves the same. It seems that the appellant
No.1 herein himself pleaded in earlier suit proceedings that any
issue relating to item No.1 of the plaint schedule property i.e.,
cinema hall has to be governed by the partnership laws and the
same has to be dealt by an arbitrator. Now he cannot go back
to approach the civil Court for remedy of partition. More over,
the appellants failed to prove that item No.1 of the plaint
schedule property is the joint family property. It is settled Law,
partnership business has to be governed by the partnership
laws. Therefore, the present suit for partition of item No.1 of the
plaint schedule property is not maintainable.
35. The specific case of the first defendant herein is that the
item Nos.2 and 3 of the plaint schedule properties are not the
joint family properties. It is not in dispute by both the parties that
there was a registered partition deed in between both the
parties. Once there is a division of joint family properties, the
burden lies heavily on the plaintiffs to show that the property
has been purchased by the first defendant out of joint family
2024:APHC:1
52
funds. The appellants have failed to prove that the funds of the
joint family were utilized for the purpose of purchasing of the
land. In the absence of any proof that it is a joint family
property nor any evidence to show that the land is belongs to
the firm, the plaintiffs cannot seek relief of partition. The
material on record reveals that the plaint schedule properties
are not the joint family properties. The plaintiffs have failed to
prove that the properties are purchased out of the joint family
properties. In the absence of any evidence, the plaintiffs are not
entitled any relief of partition. The own admissions of PW1 and
PW2 negatived the case of the plaintiffs for the relief sought for
partition. Admittedly, there is no evidence on record that the
item Nos.1 to 3 of the plaint schedule properties are purchased
from out of joint family funds and those properties are joint
family properties. For the foregoing reasons, the plaintiffs are
not entitled the relief of partition and mesne profits for item No.1
of the plaint schedule property. I do not find any illegality in the
finding given by the trial Court and the decree and judgment
2024:APHC:1
53
passed by the trial Court is perfectly sustainable under law and
the trial Court is justified in dismissing the suit, accordingly, the
point Nos.1 and 2 are answered.
36. A.S.M.P.No.591 of 2013:
This petition is filed by the appellants to receive the copies
of documents of partnership deed of Rice and Flour Mill
business dated 30.06.1959 and the un-registered family
arrangement document dated 27.07.1986. The contention of
the petitioner/first appellant is that those documents could not
be filed in the suit due to lack of knowledge and hence the
same cannot be produced on account of reasons beyond his
control. The respondents pleaded in the counter that those
documents cannot be received as additional evidence and there
are no merits in the present application.
37. This application is filed by the appellants invoking wrong
provision of law under order 41 Rule 21 read with 151 of Civil
Procedure Code. The correct provision of Law is Order 41 Rule
2024:APHC:1
54
27 of Civil Procedure Code. Order 41 Rule 27 of Civil
Procedure Code defines as follows:
Rule 27 - Production of additional evidence in Appellate
Court.—(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary, in
the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted,
or
[(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due diligence,
such evidence was not within his knowledge or could not, after
the exercise of due diligence, be produced by him at the time
when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced
or any witness to be examined to enable it to pronounce
judgment, or for any other substantial cause, the Appellate
Court may allow such evidence or document to be produced, or
witness to be examined.
The suit was instituted in the year 1999 and the suit was
dismissed by the trial Court in the year 2005, the documents
sought to be received as additional evidence are filed after 14
years of the institution of the suit and so also after 8 years of
2024:APHC:1
55
the disposal of the suit, in the appeal proceedings. Admittedly,
the appellants are parties to the documents sought to be
received. Therefore, it is absurd to believe the explanation
offered by the appellants that the aforesaid documents cannot
be produced due to lack of knowledge, the same is unbelievable.
38. The learned counsel for appellants placed a reliance in
Peddi Venkataravamma vs. Chinnam Viswanadham and
others15. In that decision, it was held as follows:
….the parties are not entitled to produce additional evidence,
whether oral or documentary in the appellate Court, except for the
three situations mentioned above. However, at the same time
where the additional evidence sought to be adduced removes the
cloud of doubt over the case and the evidence has a direct and
important bearing on the main issue in the suit, such application
may be allowed. It depends upon whether the appellate Court
requires the evidence sought to be adduced to enable it to
pronounce judgment or for any other substantial cause.
In a case of State of Karnataka and another vs.
K.C.Subramanya and others
16, the Apex Court held as follows:
15 2023(6) ALD 661 (AP)
16 (2014)13 SCC 468
2024:APHC:1
56
It is thus clear that there are conditions precedent before allowing a
party to adduce additional evidence at the stage of appeal, which
specifically incorporates conditions to the effect that the party in
spite of due diligence could not produce the evidence and the same
cannot be allowed to be done at his leisure or sweet will.
In the case on hand, the appellants are parties to the
aforesaid documents sought to be received, but they have
failed to file the same along with plaint or at least during the
course of trial. The appellants failed to prove inspite of due
diligence they could not produce the evidence on additional
documents before the trial Court, the conduct of filing of this
application after lapse of 14 years of institution of the suit in an
appellate Court in appeal proceedings, without proving due
diligence shown by the appellants, these documents cannot be
received as additional evidence in the appeal proceedings.
The legal position in this regard is no more res integra, the
same has been well settled by the Apex Court in Union of
2024:APHC:1
57
India vs. Ibrahim Uddin and another17. In the said case, the
Apex Court held as follows:
The general principle is that the Appellate Court should not travel
outside the record of the lower court and cannot take any evidence
in appeal. However, as an exception, Order XLI Rule 27 CPC
enables the Appellate Court to take additional evidence in
exceptional circumstances. The Appellate Court may permit
additional evidence only and only if the conditions laid down in this
rule are found to exist. The parties are not entitled, as of right, to
the admission of such evidence. Thus, the provision does not apply,
when on the basis of evidence on record, the Appellate Court can
pronounce a satisfactory judgment. The matter is entirely within the
discretion of the court and is to be used sparingly. Such a discretion
is only a judicial discretion circumscribed by the limitation specified
in the rule itself.
It is not the business of the Appellate Court to supplement the
evidence adduced by one party or the other in the lower Court.
Hence, in the absence of satisfactory reasons for the nonproduction
of the evidence in the trial court, additional evidence should not be
admitted in appeal as a party guilty of remissness in the lower court
is not entitled to the indulgence of being allowed to give further
evidence under this rule. So a party who had ample opportunity to
produce certain evidence in the lower court but failed to do so or
elected not to do so, cannot have it admitted in appeal.
17 2012(8) SCC 148
2024:APHC:1
58
The ratio laid down in the aforesaid decision is squarely
applicable to the present facts of the case. It is well settled that
in the absence of pleadings, evidence, if any, produced by the
parties cannot be considered. It is also equally settled that no
party should be permitted to travel beyond its pleading and that
all necessary and material facts should be pleaded by the party
in support of the case set up by it. The object and purpose of
the pleading is to enable the adversary party to know the case it
has to meet. In order to have fair trial it is imperative that the
party should state the essential material facts, so that the other
party may not be taken by surprise. Admittedly, the appellants
herein are parties to the documents sought to be received as
additional evidence and they are having knowledge about the
said documents, but they failed to file the same along with plaint
or at least during the course of trial. As stated supra, they have
chosen to file the said documents after 14 years of the
institution of the suit, that too they were defeated in the trial
Court, that too after 8 years of the dismissal of the suit, in the
2024:APHC:1
59
appeal proceedings. It seems that even though the appellants
are having knowledge about the said documents, they wantonly
did not produce the same before the trial Court. In fact, there is
no pleading in the plaint about the documents sought to be
received as additional evidence before the trial Court. The
additional evidence in the appellate stage cannot be looked into
without any pleadings in that regard. It is also settled that no
evidence is permissible to be taken on record in the absence of
pleadings in that respect. The reasons offered by the appellant
No.1 in his affidavit for not producing the so called documents
sought to be received as additional evidence is not convincing.
So, there are no merits in the present application.
39. In the result, A.S.No.424 of 2005 and A.S.M.P.No.591 of
2013 in A.S.No.424 of 2005 are dismissed. No order as to costs.
2024:APHC:1
60
As a sequel, miscellaneous petitions, if any, pending in the
Appeal shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 02.01.2024
sj
2024:APHC:1
61
17
THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO
A.S.M.P.NO.591 OF 2013
IN / AND
APPEAL SUIT No.424 OF 2005
Date: 02.01.2024
sj
2024:APHC:1
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.