RAU RAJESWARA RAO Vs. RAU RAMA RAO

JUDGEMENT

(1.) IN this Second Appeal, the question that is posed is could there be a decree for partition in a case where plaintiff himself prays for the declaration of his title and injunction or in the alternative possession in respect of suit schedule land on the explicit allegation that there was a partition earlier effected and when the said relief was again restricted to 1/3rd portion of the entire property ? The case in brief is that the suit was filed by the respondent-plaintiff herein for a declaration of title, perpetual injunction and rectification of entries in 'pahanies'. The plaintiff, the second defendant and the father of the defendant No. 1 are brothers and they were members of Hindu joint family. The father of the plaintiff and of defendant No. 2 died in about 1944 leaving behind him, the plaintiff, the defendant No. 2 and the father of defendant No. 1. On the death of plaintiff's father, Rao Bhooma Rao, eldest of the three brothers was acting as the manager of the Joint family and so the name of Bhooma Rao was recorded as the 'patteder in respect nf items 1 and 2 of the suit schedule properties. With the income derived therefrom, the plaintiff, the defendant No. 2 and Bhooma Rao purchased items 3 to 5 of the suit schedule property in about 1949, in the name of Bhooma Rao. Thus, the entire suit schedule property became the joint family property. The further allegation in the plaint is that in about 1959, three brothers effected oral partition of the suit schedule properties by metes and bounds, Bhooma Rao died in 1972. Thereafter, the defendant wanted fo change the portions of each survey number and so the plaintiff and the defendants changed their portions in each survey number under an agreement dated 3-6-1973. After the death of Bhooma Rao, the plaintiff applied for mutation of his 1/3rd share in suit schedule property. But, he came to know that defendant No 1 got mutation of the entire suit lands effected in his favour. From 1973 onwards, the defendants 1 and 2 colluded with each other and denied the title of the plaintiff over the suit land. The plaintiff is in exclusive possession and enjoyment of his 1/3rd share since 15 years and the parties are in possession of their respective shares. The defendants are, however, interfeing with the peaceful enjoyment of the plaintiff's share with an intention to disposess him. Hence the suit.

(2.) WRITTEN statement filed by defendant No. 1 denies that items 1 and 2 of the olaint schedule are ancestral properties. It is also denied that items 3 to 5 were acquired out of joint family funds. It is further denied that the entire suit lands are the joint family properties. There was no oral partition. No agreement in the year 1973 was entered into with regard to the altering of the shares. Only item 2 was the ancestral property and items 1 and 3 to 5 are the self-acquired properties of Bhooma Rao, the father of defendant No. 1 and the plaintiff is not entitled to any share therein. In the year 1973, this item, namely item No. 2, was partitioned among the three brothers under an agreement of the parties. The plaintiff is in possession of his share in this item. He is not entitled to any share in the remaining items. On this, after framing the issue, inter alia, (1) whether items 1 and 2 of the plaint schedule properties were left by the father of the plaintiff, (2) whether items 3 to 5 were purchased jointly by the family members and (3) whether the suit properties are the joint family properties, the trial Court held that the suit properties are the joint family properties, that there was no partition as claimed: The trial court eventually decreed the suit, though not as prayed in the plaint granting relief of declaration of title, perpetual injunction and rectification of entries, but granted him 1/3rd share in the suit properties after due partition and separate possession thereof. On appeal, it was confirmed wherein two questions were framed for determination namely (1) whether the trial court was competent to grant to the plaintiff a relief that was not specifically claimed in the suit, and (2) whether the findings of the Trial court on issues 1 to 3 are not sustainable on facts. The answers to both the questions were in the affirmative. In so far as the question whether the properties were joint family properties, both the courts held that they were joint family properties and, therefore, this court, in second appeal, cannot interfere unless certain important pieces of evidence have not been dealt with at all or the finding is highly perverse. Since neither of the said events has occurred in this case, interference cannot be caused in second appeal. So far as the first aspect of the question is concerned, the learned counsel for the appellant relied upon a few decisions for the proposition which was already set out at the out set. J In P C. Sharma v. N N. Sharma (AIR 1 1976 S C 2456), the Supreme Court was I concerned with the deposition of plaintiff in some proceedings in the Court of tahsildar soon after the suit that plaintiffs' and defendant families had not been joint since 1921. The defendant relied upon certain documents supporting his case for separation and partition effected long ago. Plaintiff's admission that the families have not been joint were held to be damaging. I am not persuaded to accede to the submission of the learned counsel for the appellant for it is not clear as to nexus with the proposition evolved by him. The second is the case reported in V. Guravayya v. V. Kotayya (1956 An WR. b47), wherein the passage which has been relied upon by the lear- ned counsel for the appellant reads as under. 'Admittedly, a partition was effec- ted in the year 1934. Thepointfor con- sideration is could there be a repartition altering the previous one? It looks to me that a partition once effected cannot ordinarily be reopened; but there are recognised exceptions such as when it is vitiated either by fraud or error or when it is effected during the minority or absence of a coparcener which was un- fair or prejudicial to his interest or for such allied causes', (Emphasissupplied). I am not able to see how this would oome to his aid. There, the case was concer- ned in regard to the position where admi- tedly there was an earlier partition and, therefore, the questions emerging out of it could not be the same as here. Here, the.partition is not admitted. It is very much contested. So, that decision is of no help. The next is a Full Bench decision of this court reported in Kanna Reddy v. Venkata Reddy (1965 (1) An W R. 384) The passage on which reliance has been placed by the learned counsel for the appellant is;