K VENKETESWAML Vs. SAKUNTHALAMMA

JUDGEMENT

(1.) The judgment of the learned Additional Sub Judge, Chittoor in A.S. No. 172/86 dated 28-7-1987 is the subject matter of this Second Appeal. That was the appeal against the judgment and decree of the learned II-Additional District Munsif, Chittoor in O.S.No. 435/81 dated 23-4-1983. The appellants herein who were the plaintiffs (sic. defendants) in the suit consecutively failed to establish their case both in the trial Court and the first appellate Court. The reference to parties as plaintiffs and defendants would serve the convenience in the context. One Varadaiah and Krishnaiah were brothers and the members of Hindu Joint Family. Krishnaiah died in the year 1960 whereas Varadaiah predeceased him. Plaintiffs 1 and 2 are the daughters and plaintiff No.3 is the wife and widow of late Krishnaiah. Defendants 1 to 3 are the sons of late Varadaiah. These are the admitted facts. The joint family of Varadaiah, and Krishnaiah had certain joint family properties. They were sold away by the two brothers and their father to one Papamma under the registered sale-deed Ex. B-4 dated 7-10-1937. It was alleged that later on Varadaiah purchased back those properties from Papamma as the Manager of the joint family under the registered sale deed Ex. B-5 dated 9-1-1942. It was further alleged by the plaintiffs in the suit that the two brothers enjoyed all the properties as the members of the joint family as the properties belonging to joint family. There was also no partition among them. However, it appears that due to some family problems they resided separately wherein Varadaiah continued to reside at Nallabothulavarivuru whereas Krishnaiah shifted to Kasiralla village. It appears that the two brothers started enjoying the separate portions of the properties for some time and later on that was continued to be a partition by oral arrangement wherein Krishnaiah is said to have enjoyed the suit schedule properties to his share whereas Varadaiah enjoyed the'other properties. Hence there was no actual partition in writing by metes and bounds. However the plaintiffs appear to have had some grievance that the properties in possession and enjoyment of Varadaiah were more than the properties which were in possession and enjoyment of Krishnaiah. The plaintiffs alleged that even after the death of Krishnaiah they continued in possession and enjoyment of the plaint 'A' schedule properties as has been done by Krishnaiah. Since the extent of lands in possession and enjoyment of the defendants was unjustly more, the plaintiffs demanded some more extent of land from the defendants regarding which they did not agree and therefore at the intervention of mediators, a document Ex. B-3 dated 20-7-1978 was brought about wherein the defendants agreed to pay Rs. 4,000/- in lumpsum to the plaintiffs to compensate the difference and accordingly they received the amount and gave up their claim over the properties in possession and enjoyment of the defendants. Therefore, the plaintiffs contended that they were exclusively entitled to plaint 'A' schedule properties and the defendants had no right over the same. They further alleged that taking advantage of the weak position of the plaintiffs, the defendants dispossessed them from the plaint 'A' schedule properties about 6 months prior to the suit without any right or title. Alternatively it is contended that the plaintiffs perfected their title to the plaint 'A' schedule properties by uninterrupted possession and enjoyment for over a statutory period of 12 years and therefore having been dispossessed of the same, they were entitled to the possession from the defendants. Therefore, they filed the suit for declaration of their title to the sui t schedule properties for possession and mesne profits. Plaint 'B' schedule properties are the moveable properties which were the subject matter of the enquiry into pauperism which the plaintiffs pleaded to sue as paupers without paying the initial Court fee.

(2.) The defendants resisted the suit on various grounds. They denied the existence of any joint family between Varadaiah and Krishnaiah as they became divided after 1937 and lived apart for 6 years after Gurappa migrated from Nallabothulavarivuru. They also denied that the suit schedule properties are the joint family properties. On the other hand, they contended that they were the self acquired properties of Varadaiah having purchased from Papamma with his own money and the money was borrowed from others. They contended that Varadaiah became the absolute owner of the said properties. They also denied that the plaintiffs enjoyed the suit schedule properties as the joint family properties left to the share of Krishnaiah. They pleaded that after the death of their father, the 2nd defendant sold away his share in the properties to one Y. Krishnaiah Naidu and migrated to his father-in-law's village Palamakulapalle while defendants 1 and 3 continued to enjoy their respective shares in the family properties. They further pleaded that they divided their properties under the partition deed Ex. B-6 dated 7-4-1964.

(3.) The defendants pleaded that the plaintiffs were living in a portion of the house of the defendants on permission due to relationship between them. Plaintiff No.3 is also related to the defendants as she is the junior aunt of the mother of the defendants. She was also permitted to cultivate 10 guntas of dryland and 3 guntas of wetland as tenant of the defendants. They denied the plea of the plaintiffs that the panchayat was convened to bring about Ex. B-3 due to the reasons mentioned by them. On the other hand, they contended that in or about 1978 plaintiff No.3 started asserting a hostile title to the said properties. Therefore defendants 1 and 2 issued notice dated 6-2-1978 to her terminating the lease, for which she replied on 14-2-1978. According to them there is a mediation between the plaintiffs and the defondants whereby the plaintiffs executed Ex.B-3 giving up all the rights in the plaint schedule properties on receiving consideration of Rs. 4,000/-. The plaintiffs with a view to extract more money from the defendants gave a report to the Police. Again there was one more Panchayat wherein the mediators met and settled that defendants 1 and 3 should pay a further sum of Rs.1,000/- to the plaintiffs and that is how on payment of the amount, one more document came into existence between the parties, Ex. B-10 dated 27-10-1978 affirming the earlier document Ex.B-3. They denied that the plaintiffs were dispossessed from the plaint schedule properties and further contended that by virtue of such arrangement under Exs. B-3 and B-10 the plaintiffs surrendered the land to defendants 1 and 3 and thus they have been in possession and enjoyment of the same since then. However, plaintiff No.3 has been permitted to continue the occupation of thatched house during her life time and to surrender the same to defendants 1 and 3 thereafter. The defendants denied any right or title in regard to suit schedule properties. They further contended that the suit is not maintainable for setting aside Ex.B-3.