ARGI DEVASENANI Vs. MAUDEM LAKSHMI

JUDGEMENT

(1.) The legal representatives of the sole plaintiff in O.S.No.610 of 1984, on the file of I Additional District Munsif, Kakinada, are the appellants. The plaintiff filed the suit against the respondents herein, for the relief of partition of items 1 to 3 of the suit schedule property, into two equal parts, and allotment of one share to him. Through its judgment, dated 1.2.1991, the trial court passed a preliminary decree, in favour of the plaintiff, so far as item No.1 of the suit schedule property is concerned. As regards the other items of property, the suit was dismissed. Aggrieved thereby, respondents 2 and 3 herein, filed A.S.No.46 of 1991, in the Court of Principal Subordinate Judge, Kakinada. The appeal was allowed, through judgment dated 9.12.1994, and the preliminary decree passed by the trial court was reversed.

(2.) For the sake of convenience, the parties are referred to as arrayed in the suit. The pleadings of the parties in brief were as under: The plaintiff and the father of defendants 1 to 3, by name Veera Swamy, are sons of late Appala Swamy and his wife Ammanna. The suit schedule property was acquired by Ammanna, and she died in the year 1954. After her death, the plaintiff and Veera Swamy were enjoying the property jointly, and a portion of the same was leased to the 4th defendant. Veera Swamy died in the year 1984. When the plaintiff approached defendants 1 to 3 for partition of the suit schedule property, they did not accede to the request. Hence, he filed the suit for partition.

(3.) The 1st defendant remained ex parte. Defendants 2 and 3 filed a common written statement, stating that, in addition to the plaintiff and Veera Swamy, Ammanna had a daughter, by name Papayamma, and on the death of Ammanna, the property devolved upon Papayamma, since it was the Streedhana property of the former. It was also pleaded that Papayamma had a daughter, by name Appalanarsamma @ Bullemma, and she married Veera Swamy. According to them, the property, which devolved upon Papayamma, had accrued to Appalanarsamma, and on her death, to them, in the form of Streedhana property. A plea of adverse possession, against the plaintiff, also raised. The trial court recorded a finding to the effect that there did not exist any link of succession, between Ammanna and defendants 2 and 3, and thereby, passed a preliminary decree. The lower appellate court, on the other hand, took the view that the plaintiff failed to prove his case, and the preliminary decree ought not to have been passed, on the basis of the evidence adduced on behalf of the defendants. Sri J.Prabhakar, learned counsel for the appellants, submits that in a suit for partition, the distinction between plaintiff and defendant virtually gets blurred, and there was no justification for the lower appellate court, in setting aside the preliminary decree. He further contends that once the relationship, between the plaintiff and the father of defendants 1 to 3, was not disputed, and when defendants 2 and 3 wanted to deny the benefit of succession to the plaintiff, burden squarely rested upon them, to prove the necessary facts, to disrupt the chain of succession.