Suit for declaration in alternative partition in respect of A and B properties – Claimed A schedule are self acquired properties – Regarding B schedule properties claimed joint right as some of the properties stands in the name of defendants – Trial court partly decreed the suit in respect of A schedule properties as the Defendants failed to prove that the A schedule properties are purchased out of joint income and out of the income of ancestral properties – and dismissed the suit in respect of B schedule due to non-joinder of his mother as one the party – Appeal was also confirmed – Their Lordships of High court also confirmed the lower court order and judgement and dismissed the second appeal =
The respondent/plaintiff filed the suit
(a) for possession in respect of 5 items of “A” Schedule properties
(b) for the amount of Rs.4,000/- as past profit
(c) for alternative relief of preliminary decree for partition and separate possession of the plaintiff’s 1/3rd share in 5 items in “A” schedule and 6 items in “B” Schedule properties
(d) To direct the defendants 1 and 2 or all the defendants to render accounts for the income of the suit properties for the past three years prior to the suit
(e) for final decree
(f) for cost
(g) other reliefs.=
The respondent’s father or the family members have not owned any property much less income yielding property. The family do not possess any ancestral or joint family property.
Since he was in the Military service, he was eligible to enjoy Government Poromboke land and he occupied item 1 of the suit “A” Schedule property which was used as ‘Kalam’ by some persons in the year 1958-1959. At that time, the first appellant was minor and the 2nd appellant was an young boy aged about 4 or 5 years. Only out of the respondent’s money, the said first item was made fit for cultivation. Initially, “B” memos were issued to the respondent and later assigned to the respondent on the basis of his application and on account of his Military service. The above said first item given by the State Government to the appellant as a grant and the respondent out of his own income erected a borewell and brought electricity connection. The respondent out of his own income purchased item Nos.2 and 3 including 3A of ‘A’ Schedule properties for his benefit. Further, the respondent has also purchased house site in his mother’s name and subsequently got it transferred in his name and put up the building in item 4 of the ‘A’ Schedule with his own fund and also by raising loan from the building society. Since the respondent was in service elsewhere he allowed his father, mother and others to live in the newly constructed house in item 4 of the “A” Schedule and kept all the documents in an alamirah in that house. Thus the entire “A” schedule properties are self-acquired properties of the respondent. Neither the appellants 1 and 2 nor the family contributed any amount for the purchase of properties. The respondent used to come to the village during cultivation time and cultivating “A” schedule properties out of his own earnings. The appellants 1 and 2 used to help the respondent only in cultivation of the lands. The respondent settled the village permanently after his retirement in June 1992. Since the respondent was living in the newly constructed house, the appellants were allowed to live in item No.5 of “B” Schedule house. The appellants began to disturb the respondent’s possession and hence the respondent filed a suit in OS.No.1034 of 1993 in respect of items 1 to 3 of the suit “A” Schedule properties. The appellants 1 and 2 for the first time in November 1993, claimed as both “A” & “B” Schedule properties are the joint family properties.
The appellants are in illegal possession in the plaint “A” schedule properties and hence the respondent entitled to recover possession and future profits. To avoid multiplicity of proceedings, the respondent filed comprehensive suit for partition of 1/3rd share in A and B schedule properties. Since some of the properties in ‘B’ schedule stands in the name of appellants 3 and 4 they are impleaded as necessary parties. Hence, this suit.
The trial court has discussed about the oral and documentary evidence adduced on either side and finally held that all the items of A-schedule properties are separate properties of the respondent/plaintiff and not ancestral properties. Therefore, the respondent/plaintiff is entitled to the relief of declaration, recovery of possession and also the relief of mesne profits. The trial court also directed to take separate proceedings regarding mesne profits. In view of the above said findings, the trial court has dismissed the relief of partition in respect of all items in A-schedule properties. With regard to items 1 to 5 in B-schedule properties, the trial court has held that the plaintiff has not impleaded the necessary parties particularly the mother of the plaintiff and therefore, the suit for partition regarding items 1 to 5 is not maintainable and hence rejected the claim of the respondent. The trial court has discussed about the 6th item of B-schedule and finally held that it is self-acquired property of third appellant / third defendant and it is not joint family property and therefore, rejected the relief of partition in respect of 6th item. Finally the trial court has decreed the suit and granted declaration, recovery of possession and mesne profits only in respect of A-schedule properties.
The respondent/plaintiff has not preferred any appeal as against the findings regarding B-schedule properties.
Defendants filed appeal – appeal was dismissed and now the second appeal .
The first appellate court also confirmed the findings of the trial court. No appeal has been preferred in respect of six items of B-schedule properties. Therefore, in this appeal, only to be decided whether five items of A-schedule properties are self-acquired properties, as contended by the learned counsel for the respondent or joint family properties as contended by the learned counsel for the appellants.
Admittedly, the first item of A-schedule was originally a Government poromboke land and the above said property was assigned by the Government to the respondent, since he was in Military service. The Government has also granted patta in the name of respondent as per Ex.A9 order of Tahsildar dated 24.01.1976 and the patta number is 666. The appellants have not denied the fact that the patta was granted in the name of respondent, while he was in Air-Force. It is not the specific case of the appellants that the patta was granted only on the basis of possession. Admittedly, at the time of issuing patta in the name of respondent, the father of the respondent, who was kartha of the family alive. Therefore, the appellants have not stated any reason why the above said property was assigned in the name of respondent, if the patta was granted only on the basis of possession of the appellants family. At the time of oral evidence, 1st appellant deposed as DW1 as admitted that the patta has been granted in the name of respondent only on the ground that he was in Air-Force service. But, he expressed ignorance about the patta was granted only on the ground that he was in Air-Force. Further, appellants have not claimed right on the basis of possessary title over the 1st item of A-schedule property. Therefore, both the courts below have given clear findings after discussing both sides oral and documentary evidence and finally held that the 1st item of A-schedule is a self-acquired property of the respondent and not joint family property as pleaded by the appellants. Therefore, the above said finding is not perverse finding and hence no need to interfere with the above said findings.
On careful reading of entire oral and documentary evidence adduced on either side revealed that the appellants have miserably failed to prove the income from ancestral property and also not proved the loan obtained by the appellants for purchase of the properties and discharged only out of income from joint family property.
It is not in dispute that the deceased Rangasamy Padayachi was only a gangman and he retired from service in the year 1967. As rightly discussed by the courts below, the appellants never placed any reliable documentary evidence to prove the above said Rangasamy Padayachi was a permanent employee and received a sum of Rs.50,000/-, at the time of retirement. Therefore, except certain receipts for discharge of loan, no reliable evidence to prove that the appellants family having joint family properties and sufficient income from the properties to purchase the above said properties and the loan obtained for purchase of the properties and discharged only out of the excess income from joint family properties and therefore, the above said findings of both the courts below regarding suit items 2 and 3 including 3A also not perverse finding
Further, the appellants have not examined the mother of the appellants 1 and 2 to prove that the family having sufficient fund to purchase the properties and also to prove that the mother having jewels and obtained loan and from the above said fund, the properties were purchased in the name of respondent or in the name of mother. No reason has been assigned by the appellants for non-examination of material witness as discussed by the courts below. Absolutely no pleadings and evidence to prove that the appellants family having sufficient means and the mother of the appellants 1 and 2 doing milk vending business and earned money and out of the above said fund, the properties were purchased. On the side of the appellants not produced any documents to prove that the father of the appellants 1 and 2 or the family members taken lease and out of income from the lands, the properties were purchased. Therefore, absolutely no reliable oral and documentary evidence to prove the contention of the learned counsel for the appellants as rightly discussed by both the courts below. Therefore, the findings of both the courts below are not perverse finding or illegal as pleaded by the learned counsel for the appellants. Both the courts below correctly discussed about the oral and documentary evidence particularly the alleged letters written by the respondents and finally held that the appellants have failed to prove that the A-schedule properties are joint family properties and therefore, all the substantial questions of law answered as against the appellants.
24. In view of the above said discussions, the findings of both the courts below are to be confirmed and the second appeal is liable to be dismissed.
2014 ( Feb.Part) judis.nic.in/judis_chennai/filename=45052