BHARATHI ALIAS BHARATLAL Vs. SURAJ SINGH

JUDGEMENT

(1.) The unsuccessful defendants in O.S.No.619 of 1984 on the file of the First Additional Judge, City Civil Court, Hyderabad, had preferred CCCA.No.148 of 1995. The defendants in O.S.No.619 of 1984 filed yet another suit O.S.No1284 of 1986 against the plaintiff in the said suit showing him as defendant for recovery of possession and mesne profits and being unsuccessful in the said suit, they preferred A.S.No.368 of 1995 on the file of the IV Additional Chief Judge, City Civil Court, Hyderabad, which was withdrawn and transferred to this Court and numbered as Tr.CCCA.No.233 of 2000. Inasmuch as both the matters were decided by common judgment, both these appeals are being disposed of by this common judgment by this Court.

(2.) Sri Arun Rao Thuljapurkar, learned counsel representing appellants, in both the appeals, had taken this Court through the respective pleadings of the parties, evidence available on record and would contend that irrespective of the fact whether the defendants in O.S.No.619 of 1984 were able to establish their case or not, the plaintiff is bound to substantiate his stand. The learned counsel also maintained that the plaintiff, the eldest son, left the family long back and this aspect is clearly established by the fact that he himself had pleaded in O.S.No.619 of 1984 that the plaintiff and his wife carried on their job at Warsiguda and they disposed off residential plot at Warsiguda for a sum of Rs.16,140/- in the year 1969 and sold away ancestral jewellery and spent the money for construction of the suit property. The learned counsel would maintain that in the light of the said specific plea, the burden is on the plaintiff to establish that he is also entitled to a share in the self-acquired property of his father. The learned counsel also would maintain that absolutely, there is no evidence adduced in relation thereto. The learned counsel further had taken this Court through the evidence of D.Ws.1 to 4 and Exs.B.1 to B.10 in general and Ex.B.2, in particular, and would comment that the mere fact that the recital that the property is the self-acquired property of the father had not been mentioned in the documents, that by itself cannot be taken as a negative factor to disbelieve the case of the appellants. The learned counsel also would maintain that presumption of joint family property or a particular property is that of joint family will not come to the aid of the respondent in these appeals, plaintiff in O.S.No.619 of 1984.

(3.) Sri Vijay Kumar Heroor, the learned counsel representing respondent, in both these appeals, the plaintiff in O.S.No.619 of 1984 and the defendant in O.S.No.1284 of 1986 maintained that the fact that the parties originally belong to Haryana State is not in serious dispute. The learned counsel also would comment that this is not a case where respondent in these appeals had been very young at the time of the purchase of the property and in fact, as eldest son of the family, he had taken the self-same scavenging work, had been assisting the family inclusive of meeting educational expenses of other brothers assisting the father as well, and it is but natural in the facts and circumstances, the presumption that the property purchased by the father to be the joint family property would be stronger in view of the close relationship between the parties. The learned counsel also maintained that even otherwise the defendants in O.S.No.619 of 1984 were unable to establish that respondent in both the appeals, plaintiff in O.S.No.619 of 1984, had been residing separately, had nothing to do with the family and when there is no convincing evidence in this regard, the findings recorded by the learned Judge are to be confirmed. The learned counsel also would maintain that the defendants in O.S.No.619 of 1984 as plaintiffs filed the other suit O.S.No.1284 of 1986, for recovery of possession and in view of the fact that the suit for partition is decreed, the natural consequence would be the dismissal of the other suit and hence, the said findings ought to be confirmed.