NALLURI SUBBARAYUDU Vs. RANPATI RAMANAIAH AND ORS.

JUDGEMENT

(1.) THE suit out of which this appeal arises was filed by the first respondent for a permanent injunction, but subsequently the plaint was amended so as to convert it into one for possession and in the alternative for partition and separate possession of the suit property. The facts that have been found by the Courts below are these. The second and third defendants are brothers who owned, among other properties, land measuring 8 acres and 96 cents. The second defendant is the elder of the two and he was residing in the village. The third defendant was employed in Government service and at the material time he was the Head Accountant in the Revenue Department at Guntur. They constituted an undivided family, although at one time an attempt was made to set up a case that they were divided. The senior brother, the second defendant, was the manager, although, here again, an attempt was made to claim that the younger brother, the third defendant, was managing the properties. In 1936, the entire plot of 8 acres and 96 cents, referred to above was leased to the first defendant, who is the appellant here, for a period of seven years and the lease was to expire at the end of the year Chitrabanu, corresponding to 1942 -43. Before the expiry of that lease, the appellant obtained a further extension of the period of lease for ten years under letter, Ex. D -1, dated 21st March, 1942. This lease purports to have been given by both the brothers, but the letter, Ex. D -1, was actually executed by the third defendant alone and, as a matter of fact, the second defendant has disowned any connection with it. The third defendant came forward with the version that he was approached by Burra Venkayya, D.W. 2 on behalf of the first defendant for the extension of the term of the lease and that the third defendant agreed on payment of the arrears of rent and of a further sum of Rs. 500 by way of advance for the extended lease. But he says that he stipulated that the lease was subject to the consent of the second defendant to comprise his share in the land also therein. His case was that subsequently the second defendant did not agree, and consequently he stated in his reply to the notice sent by the appellant that he was prepared to confine the lease to his half share. This version was not countenanced by the trial Court. On 22nd June, 1942, the second defendant in turn executed a registered lease for half the extent of the suit land in favour of the plaintiff, the first respondent, for a period of ten years. Both the Courts have found that the third defendant was also behind this lease and that both the brothers combined to bring about this transaction as there was an attractive offer of advance rent of Rs. 1,000 from the plaintiff. The finding of fact is that the third defendant was aware of this transaction, having regard particularly to the fact that the document was executed and registered at Guntur, where the third defendant was employed, instead of at Ongole. The further case was adumbrated by the plaintiff -first respondent to the effect that possession of 4 1/2 acres, which was the subject -matter of the registered lease, Ex. P -1 was actually delivered to him and it is on that footing that the present suit was filed for a permanent injunction. Both the Courts have concurrently found the case of delivery of possession to the plaintiff to be in time and held that as a matter of fact, possession continued with the appellant. The present suit was filed on 7th September, 1943, and along with it an application was made for temporary injunction. The application was dismissed and promptly the plaintiff applied for the amendment of the plaint, seeking possession of the B Schedule property and, in the alternative, partition of the entire plot of 8 acres and 96 cents and delivery to him of one half thereof, subject to the terms of the lease, Ex. P -1. As a result of this amendment, the third defendant who was until then not a party to this suit was impleaded as a party -defendant. The trial Court decreed the suit for partition of the entire holding into two shares for separate possession of one share to the plaintiff, holding that the lease from the second defendant gave the plaintiff sufficient title to demand partition from the other lessee who must be held to be entitled to only the interest of the third defendant. An appeal brought by the first defendant -appellant was dismissed by the Subordinate Judge of Bapatla. The learned appellate Judge agreed with the conclusion of the trial Court that Ex. D -1 was not binding on the second defendant and held that the second defendant was competent to lease his own share of the property under Ex. P -1. He also agreed with the view taken by the learned District Munsiff that the alternative relief of partition alone could be granted in favour of the plaintiff and that the suit was not bad for partial partition as it was a dispute between alienees from different coparceners.

(2.) MR . D. Munikanniah, the learned advocate for the appellant, has raised two contentions before me. The first is that the amendment of the plaint which was ordered by the trial Court had the effect of altering the nature and complexion of the suit, and that hence the amendment should not have been granted. The second argument is that the suit is virtually one for partial partition and that according: to well -settled principles such a suit is not maintainable in the absence of a prayer for general partition. It is curious that the objection relating to the effect of the amendment of the plaint was not raised in the lower appellate Court. The order of amendment indicated that the amendment would be permitted to be made only on payment of the costs specially awarded. From the fact that the amendment was carried out, it is clear that those costs were paid and received by the appellant and it does not appear that the costs were received under protest. Attention was drawn to the plea taken in the additional written statement that was filed after the amendment of the plaint; but apparently this objection was not pressed either at the trial as I find no discussion with regard to it in the judgment of the trial Court or at the appellate stage in the lower appellate Court.

(3.) FINALLY , one other ground of distinction was put forward by the learned advocate for the appellant that in the present case, far from there being a waiver by the coparceners, the third defendant specifically objected to the suit on the ground that, being one for partial partition, it was not maintainable. The objection is not found in the written statement filed by him in the suit, but it was raised only in the memorandum of cross -objections that was filed in the appeal in the lower appellate Court which was directed exclusively against the order of costs made against him. No plea or argument on that ground appears, however, to have been actually advanced at the hearing of the appeal before the lower appellate Court. As it was strenuously contended as a special point of distinction that in Iburamsa Rowthan v. : (1910)20MLJ743 no such objection as to partial partition was raised by any of the coparceners, I sent for the records in that case and examined the pleadings. Although no specific objection was taken in that form by either the first defendant or the second defendant in that case, the second defendant filed a written statement in which he expressly stated that the family was joint and owned properties other than those conveyed to the plaintiff and the third defendant. Those averments must have been made, only for the purpose of bringing to the notice of the Court the fact that it was a suit for partial partition. As a matter of fact, the trial Court dismissed the suit on that ground alone. It is therefore futile to contend that the plea of partial partition was not prominently brought forward in Iburamsa Rowthan v. : (1910)20MLJ743 . Despite the objection of the contesting coparcener and the absence of a waiver, the rule was none the less affirmed and enforced in that case by the Full Bench.