GADU APPALANAIDU Vs. SURALA CHINA BANGARAIAHDIED

JUDGEMENT

(1.) This appeal is filed against the judgment dated 30.8.1989 in A.S. No.25 of 1985 on the file of the II Additional District Judge, Visakhapatnam setting aside the judgment and decree dated 20.12.1984 in O.S.No.32 of 1983 on the file of the District Munsif Court, Bhimunipatnam. Defendants 2 to 8 are the appellants. The sole respondent-plaintiff died during the pendency of this appeal. Respondents 2 and 3 are brought on record as Legal Representatives of the deceased sole respondent-plaintiff.

(2.) Necessary facts for the disposal of this second appeal are as follows: Defendant No.1 is the father of defendants 2 to 6. Defendant No.7 is the wife and defendant No. 8 is the daughter of the first defendant. On 6.6.1982 the first defendant sold the plaint schedule property to the plaintiff under Ex.A-1, registered sale deed. The plaintiff filed the suit alleging that the plaint schedule property is the self-acquired property of the first defendant and after execution of Ex.A-1, sale deed by the first defendant in his favour, the other defendants in the suit high-handedly trespassed into suit property. He sought the relief of declaration of his title and also for possession of the suit property after evicting the defendants from the possession of the suit property. Soon after the suit was filed, the first defendant died. He did not file any written statement before his death. The fifth defendant filed the written statement opposing the suit. His written statement was adopted by the other defendants in the suit. According to the contesting defendants, the suit property is the joint family property of all the defendants including the first defendant. They also pleaded that there was a family arrangement between the members of the family and as per that family arrangement the first defendant gave the suit properties to his sons viz., defendants 2 to 6, who agreed to give paddy and cash every year for the maintenance of their father (the first defendant), mother and sister. In view of the pleadings of both the parties, the trial Court settled appropriate issues for trial. Both parties adduced oral and documentary evidence before the trial Court. On a consideration of the entire evidence available on record the trial Court came to the conclusion that the suit property is self- acquired property of the first defendant. It did not accept the plea of the defendants that it is the joint family property or that it was acquired by the joint efforts of the members of the family. Regarding the family arrangement pleaded by the defendants, the trial Court accepted the version of the defendants. However, the trial Court held that the first defendant was entitled to sell the property under Ex.A-1 sale deed. It further held that the only remedy of the plaintiff is to file a separate suit for partition regarding 1/6th share of the first defendant in the suit property. In view of the above finding, the trial Court dismissed the suit filed by the plaintiff. However, it directed the defendants in the suit to pay the plaintiff the suit costs. Aggrieved by the said judgment and decree the plaintiff preferred an appeal in A. S. No. 25 of 1985 on the file of the II Additional District Judge, Visakhapatnam. Aggrieved by the decision of the trial Court directing the defendants to pay the suit costs to the plaintiff, defendants preferred cross-objections before the lower appellate Court. The lower appellate Court disposed of the appeal as well as the cross- objections by its judgment dated 30.8.1989. The lower appellate Court proceeded on the basis that the trial Court did not accept the plea of the defendants regarding the family arrangement. Proceeding on that basis the lower appellate Court held that when the trial Court found that the sale deed, Ex.A-1 is binding on the defendants, it committed an error in refusing to grant decree of possession in favour of the plaintiff. Accordingly, the lower appellate Court set aside the judgment and decree of the trial Court and allowed the appeal. While setting aside the judgments and decree of the trial Court, the lower appellate Court did not interfere with the judgment of the trial Court regarding the costs directed to be paid by the defendants to the plaintiff. Accordingly, the lowe. appellate Court dismissed the cross- objections filed by the defendants. Aggrieved by the judgment and decree of the lower appellate Court, the defendants in the suit preferred the present appeal.

(3.) At the time of admission of this appeal, the learned admission Judge treated the following points formulated in the grounds of appeal as substantial questions of law that arise for consideration in the present appeal. Points: i. Whether the judgment of the lower appellate Court is vitiated for the reason that it misread and misunderstood the judgment of the trial Court and reversed the decree. ii. Whether the plaintiff is entitled to recover possession of the plaint schedule land if the family arrangement pleaded by the defendants 2 to 6 is proved as found by the trial Court. iii. Whether the lower appellate Court could reverse the finding of the trial Court regarding the family arrangement without considering the evidence on record.