CHINTALA PENTAIAH Vs. CHINTALA SIVALINGAM

JUDGEMENT

(1.) The unsuccessful second defendant, at the appellate stage is the appellant herein. Himself and the plaintiff are brothers and the first defendant is their father. The first respondent-plaintiff laid the suit for partition of the joint family properties, two items, viz immoveable properties one of which is Survey No.578 claimed by the appellant as his self acquisition. The appellant resisted the partition on another ground that respondent No.1 did not include all the moveable and immoveable properties, viz., an amount of Rs.10,000/- (from the money- lending business) flowing from the joint family nucleus, goats and sheep vaiued upto Rs.12,000/-, gold ornaments worth Rs. 15,000/- and also the newly built house in which the respondents viz., his brother and father are living. The parties have adduced evidence. The trial Court found that S.No.578 is not the self-acquired property of the appellant but it is the joint family property. Yet it dismissed the suit on the ground that there exists other moveable and immoveable properties which belong to the joint family. On appeal, the appellate Court gave a finding that the evidence adduced regarding the moveable properties is not satisfactory and therefore held that the moveable properties are not the joint family properties. It also held that there is no sufficient evidence to establish that the newly built house is also the joint family property. Therefore it decreed the suit with respect to landed property annexed to the preliminary decree. Thus this second appeal.

(2.) Sri Mathipathi Rao, learned Counsel for the appellant, contends that the approach of both the Courts below in holding that Survey No.578 is the joint family property is incorrect and the evidence on record discloses that it is not a joint family property and therefore the finding requires re-consideration; he prays for remand. He agreed with the finding regarding the moveable properties and as it is a finding of fact, it cannot be interfered with. He further contends that both the Courts having noticed thai the newly built house is also in existence in which the respondents are living, ought to have held that it is also a joint family property. As the appellant has specifically pleaded in part 4(4) of his written statement, that it is a joint family property, built from the joint family nucleus, it is for the first respondent to establish that it is his self-acquired. It is not his case that it is his self-acquired, therefore, it must be held that it is the joint family property and it is also liable for partition. The appellate Court did not consider the case from this perspective. Thereby it committed error in recording the finding that there is no evidence to establish that the newly built house is the joint family property.

(3.) Sri Pratap Reddy, learned Counsel for the respondents, on the other hand contends, that the descriptive particulars of the newly built house or its value have not been mentioned. The evidence of D.Ws.1 and 2, examied on behalf of the appellant does not show that it is a joint family house. The trial Court did not give a categorical finding that is the joint family property; the appellate court went into that question and found that the evidence is inconclusive to find that it is the joint family property and as it is a finding of fact, it does not warrant interference in this appeal.