RAVIKOTI MATTAM SHASHI MOHAN Vs. PARVATHAMMA

JUDGEMENT

(1.) INTRODUCTORY FACTS : Ravikoti Mattam Shashimohan, son of Chintamani, the unsuccessful plaintiff in O.S., No. 1041 of 1985 on the file of IV Additional Judge, City Civil Court, Hyderabad aggrieved by the judgment and decree made . in the aforesaid suit dated 12-2-1996 had preferred this appeal. Smt. Vimalamma, the sister of Ravikoti Mattam Shashimohan, i.e., the daughter of Chintamani was impleaded as R. 4 in this appeal, who died on 25-8-1998, R-5 to R-8, the legal representatives of R-4 were brought on record. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants 1 to 3 and the legal representatives of Smt. Vimalamma. The suit was filed by the plaintiff claiming the relief of partition of the plaint schedule house and also for injunction restraining defendants 1 to 3 from carrying out alterations or alienating the properties. The relief is prayed for on the strength of a registered gift deed. Defendants 1 and 2 filed a written statement in detail and defendant No. 3 also filed yet another written statement. Though the gift deed dated 15-4-1930, is not in serious controversy, the specific stand taken by the defendants 1 to 3 is that the said gift deed was never acted upon and their branch perfected title by adverse possession and incidentally it was stated that in the facts and circumstances of the case, the implied ouster also can be inferred. On the strength of the respective pleadings of the parties, having settled the issues, the learned Judge recorded the evidence of P.W. 1, the plaintiff, yet another Raghavender Rao as P.W. 2, the third defendant was examined as D.W. 1 and the second defendant was examined as D.W. 2, the evidence of the persons said to have been tenants had been recorded as D.Ws. 3 to 5. The plaintiff relied on Ex. A1, the registered gift deed dated 15-4-1930, the defendants placed reliance on Ex. Bl to B.25. The learned Judge on appreciation of evidence came to the conclusion that the branch of defendants 1 to 3 has been in possession of the property for long time without any interruption whatsoever and thus had perfected title by way of adverse possession and ultimately negatived the relief. Hence, the appeal. CONTENTIONS OF SRI P. V. NARAYANA EAQ_i

(2.) Shri P. V. Narayana Rao, the learned counsel representing appellant-plaintiff would submit that in view of the fact that Chintarnani died intestate, the branch of Chintamani would be represented by the plaintiff and his sister Vimalamma and since the sister is no more, the legal representatives of said Vimalamma were brought on record and hence, these parties would be entitled to the half share in the plaint schedule property as specified in Ex. Al. The learned counsel also pointed out that though an issue in relation to adverse possession had been framed, no specific issue relating to ouster had been framed as such. The learned counsel also would maintain that in a case of this nature where the parties are relatives, possession of one co-owner should be taken as possession on behalf of the other co-owners as well. On the mere fact that Chintamani kept quiet during his life time, by itself cannot be taken as extinguishment of the right of Chintamani branch to which otherwise they would be entitled to under Ex. Al. The learned counsel also would further contend that even certain admissions made by D.Ws. would negative the stand of ouster and at any rate, inasmuch as the other side may have to discharge the burden, by mere production of some oral evidence of tenants or certain municipal records, the plea of ouster cannot be inferred and hence, in view of the fact that the document in question Ex. Al is not in serious controversy, both the branches would be entitled to equal shares. The learned counsel had taken this Court through the evidence available on record and also placed reliance on certain decisions. CONTENTIONS OF SRI A.RAVI SHANKER:

(3.) Sri A. Ravi Shanker, the learned counsel would contend that the conduct of the parties may have to be taken into consideration while deciding whether there was ouster. The learned counsel also would contend that the fact that continuously, even from the date of Ex.Al, Chintamani branch never exercised the rights and the other branch, Nagabhushnam branch alone has been in continuous possession and enjoyment of the property, would amply establish implied ouster. The learned counsel also placed reliance on certain decisions to substantiate his stand. The learned counsel while further elaborating his submissions had pointed out to certain mistakes committed in the recording of evidence and would contend that the evidence may have to be appreciated in toto and if the latter portion of the evidence also is taken into consideration it is clear that the recording of evidence to the effect that Chintamani resided in the property can be definitely taken to be a mistake. Even otherwise, the learned counsel would contend that except the evi - dence of P.W. 1 there is no other evidence available on record and the evidence of P.W. 2 is of hear say nature relating to the family affairs inclusive of adoption. The counsel also would contend that on the contrary defendants 1 to 3 had placed both oral and documentary evidence, D.Ws. 3 to 5 and also Ex. B. 1 to B. 25, which would clearly go to show that at no point of time, subsequent to the execution of Ex. A1, any rights had been exercised by Chintamani branch over the suit schedule property.