VASA THULASI RAO Vs. PEETLA PEDDA ANJANAYYA

JUDGEMENT

(1.) The defendant in O.S. No. 213 of 1957, on the file of the District Munsiff's Court, Gooty is the appellant in this second appeal. The suit was for partition of the suit land into three equal shares by metes and bounds and for separate possession of the plaintiff's 1/3rd share and for mesne profits till delivery of possession. According to the plaintiff, the suit land was purchased by him from one Agraharam Hanumakka, daughter of Gattappa, for a sum of Rs. 300 on 8th May, 1951, and was in possession of the same ever since. The suit land as well as the other 2/3rds share in the entire extent was in possession of the plaintiff as a lessee for over 40 years. The plaint schedule land bearing S. No. 31 is about Ac. 10-70 cents in extent. According to the plaintiff, the entire land in the said S.No. fell to the share of Gattappa, Kesavayya and Viswanathamayya in a partition on 2nd September, 1912. Therefore, the said Gattappa had a right to a one-third share therein. He had no male issue and so, the share of Gattappa devolved Upon his daughter, Hanumakka. While so, the defendants unlawfully entered into the suit land in 1957. Since the plaintiff has purchased the 1/3rd share of Gattappa, he is entitled to the decree for partition. Among other pleas, the defendant contended that Gattappa had another brother by name Tiruvengalappa and that the property survived to him on Gattappa's death and that he purchased the property from Tiruvengalappa's daughter. Therefore, on those pleadings, the question was whether Gattappa had a 1/3rd share in S. No. 31 and whether he was divided from his brothers, so that his share devolved upon his daughter, Hanumakka. Both the Courts below held that Gattappa was divided from his brothers and that his 1/3rd share in the suit property devolved upon his daughter, Hanumakka. On that ground, they decreed partition. In arriving at the conclusion that there was a partition between Gattappa and his other brothers, the Courts below relied upon a registration copy of the deed of partition, Exhibit A-22 dated 14th November, 1907. The original document was not produced.

(2.) The point taken by Mr. R. Subba Rao, the learned Counsel for the appellant is that Exhibit A-22 is wholly inadmissible in evidence because it is not proved. It is further argued that the Courts below erroneously drew a presumption "under section 90 of the Indian Evidence Act as Exhibit A-22 was only a registration copy and not the original. In support of this, reliance is placed upon the decisions in Ramanna v. Sambamoorthy, A.I.R. 1961 A.P. 361.

(3.) Harihar Prasad v. Deonarain Prasad, 1956 SCJ 279 : A.I.R 1956 SC 305, Sital Das v. Sant Ram, A.I.R. 1954 S.C. 606 and Venkata Ratnam v. Sitaramayya, 1950 1 M.LJ. 720 : A.IR 1950 Mad 634.