VUNNAM GUIAVAYYA Vs. VUNNAM KOTAYYA

JUDGEMENT

(1.) This Second Appeal is by the plaintiff whose suit was dismissed by the Subordinate Judge, Vijayawada, in appeal against the judgment of the District Munsif of that place. He instituted a suit for eviction of the defendants from the plaint scheduled properties, for recovery of Rs. 70 from the 2nd defendant towards the value of grass on the land for the year 1948, for future profits and for costs in the following circumstances.

(2.) The plaintiff and the 2nd defendant are the sons of the 1st defendant, the 3rd defendant being an alienee from the 2nd defendant in respect of some other property with which we are not concerned. O.S.335/31 was filed by the plaintiff against defendants 1 and 2 for partition and possession of his one-third share in the family properties. After the passing of a preliminary decree the properties were divided by the parties in the following way : Items 2 and 5 of the A schedule annexed to the plaint measuring 2 acres 17 cents were divided into two equal shares and allotted to the 1st and 2nd defendants while item 4 of the same schedule which was more or less of an equal extent was taken over by the plaintiff. This was in the year 1934. A final decree was passed on the basis of this arrangement. Some time later, in or about the year 1939, it was found that this arrangement caused inconvenience to the parties in the enjoyment of the lands. It was therefore agreed that all the three items should again be redivided into three equal shares, the three parties being allotted one share each. This arrangement was given effect to and the parties were in possession of their respective shares as per the new arrangement. In fact the 2nd defendant alienated his share of the 4th item on the 1st of April, 1948. While so, he trespassed on the lands which originally formed part of items1 and 2 and which fell to the share of the plaintiff in the re-division.

(3.) The suit was defended by the contesting 2nd defendant who pleaded that in the year 1934 each of the parties was given one-third share in item 4 and it was not exclusively allotted to the share of the plaintiff in view of the fact that he got some other properties and that items 2 and 5 fell to the share of defendants 1 and 2 and that really there was no re-partition as suggested by the plaintiff. The trial Court accepted the case of the plaintiff and gave a decree in his favour as prayed for. On appeal the Subordinate Judge while agreeing with the trial Court on findings of fact reversed the judgment as in his opinion the re-division of the properties in or about the year 1939 did not confer any title to the plaintiff in respect of items 2 and 5 in as much as it was not evidenced by a registered document. In the result, he dismissed the suit.