B BASIAH Vs. SINGANAMALA ESURATHANAM

JUDGEMENT

(1.) THE 4th defendant in O. S. No. 646/86 on the file of Principal District Munsif, Cuddapah, the purchaser of 3/4th share in items 3 and 4 of the plaint B schedule property, is the appellant in the Second Appeal. The appellant died pending the Second Appeal and the legal representatives are brought on record and the said legal representatives at present are prosecuting the present Second Appeal.

(2.) AT the outset, Sri Rajasekhar, counsel representing the appellants in the Second Appeal had drawn my attention to Ground No. 16 (1) to (c) of the Memorandum of Grounds of Second Appeal and had contended that when sufficient properties were available to the family, any acquisition made by any one of the members of the family should be presumed to be properties of the family. The learned counsel also had placed strong reliance on Mallappa Girimallappa Betgeri v. R. Yellappagouda Patil, AIR 19659 SC 906. The learned counsel also had taken me through the findings which had been recorded by the appellate Court and had assailed the said findings recorded on the ground that the reversal of the well considered findings of the trial Court had been done by the appellate Court without proper appreciation of evidence. The learned counsel also had taken me through the oral evidence of P. W. 1 to P. W. 3, D. W. 1 to D. W. 7 and also the documentary evidence - Exs. A-1 to A-19 and Exs. B-1 to B-7. The learned Counsel also had pointed out that in the absence of any evidence relating to the fact that the property covered by Ex. A-12 is the separate property of the plaintiff, the findings recorded by the appellate Court cannot be sustained.

(3.) PER contra Sri Prasad, the learned counsel representing the 1st respondent/ plaintiff had drawn my attention to the recitals of Ex. A-12 and had contended that it is not the case of the other side that the plaintiff was the Manager of the family. There mere fact that certain other properties were there of the family is not a ground to treat the plaint B schedule properties also as family properties in the light of the clear evidence of P. W. 1 to P. W. 3 and also the recitals of Ex. A-12. The learned Counsel also had drawn my attention to the findings recorded by the appellate Court and had pointed out that basing on the reply notice Ex. A-19, at paragraph 36, a specific finding had been recorded that there is no question of granting the relief of partition even in relation to plaint A Schedule lands in the light of the fact that it is clearly mentioned in the reply Ex. A-19 that there was already partition and hence there is no necessity to again partition the plaint A schedule lands. The learned counsel also submitted that as far as working out equity is concerned, the said question does not arise at all since the clear finding recorded by the trial Court is that the plaint B schedule properties are the exclusive properties of the plaintiff and hence he is entitled to recovery of possession of items 3 and 4 of plaint B schedule also and in such a case the concept of joint family or co-parcenery or working out equities as though it is a general suit for partition will not arise at all.