(ANNAPRAGADA) VISVANADHAM Vs. (ANNAPRAGADA) MANGAMMA

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. He sued for a declaration of his title to the house and site "A" marked in the plaint plan and for an injunction restraining the defendants from trespassing upon his portion and from pulling down the wall between the portions A and B. Defendant 1 is the widow of the plaintiff's deceased brother. Her case was that the suit house was not divided between the parties but that for convenience of enjoyment, the plaintiff was in possession of one portion and that she was in possession of another portion of the same, and that the allegation in the plaint that the plaintiff was the owner of one portion of the house was not correct. It would seem that, after the death of defendant l's husband, there was an arrangement evidenced by Ex. 1 dated 18 November 1901 by which certain properties were given to defendant 1 by the plaintiff. It would also seem that, subsequently, with reference to the lands covered by Ex. 1 there was an actual division by metes and bounds, but with regard to the suit house there was no division between the plaintiff and defendant 1 and that each occupied a particular portion of the house only for convenience of enjoyment of the same. Defendant 1 on 30 November 1922 executed a sale deed in favour of defendants 2 to 4 in respect of her rights to a moiety of the suit house.

(2.) The plaintiff stated that defendants 2 to 4 were trespassing upon his portion of the house and were trying to pull down the wall and accordingly he sued for a declaration of his title and for an injunction. The first Court found that there was an actual division by metes and bounds between the plaintiff and defendant 1 as regards the house and that the plaintiff was entitled to the house and site marked "A" in the plaint; and he accordingly decreed the suit in favour of the plaintiff. On appeal by defendants 2 to 4, the lower appellate Court came to the conclusion that there was no actual division by metes and bounds in regard to the suit house, that the plaintiff and defendant 1 were enjoying particular portions of the suit house for the sake of convenience only. On that finding that there was no final division of the house as alleged by the plaintiff, the suit was dismissed. The learned Subordinate Judge in para. 13 of his judgment remarked that the proper course would have been for the parties to agree to have a partition of the house effected as between themselves, so that all future disputes might be avoided; but he regretted that none of the parties asked for such a prayer and consequently he could not proceed further with that suggestion. In this second appeal preferred by the plaintiff it was argued by his learned advocate that the finding of the lower appellate Court on the question of non-division was not sustainable because the lower appellate Court had not considered the evidence of the witnesses examined on the side of the defendants. When once it was admitted that there was a partition, the presumption would be that the partition was complete, and the learned advocate submitted that the way in which the lower appellate Court proceeded to dispose of the question,.throwing the onus of proof on the plaintiff, was not justified in law. If the lower appellate Court had really proceeded in the way suggested by the learned advocate, I agree that his criticism will be well-founded; but as I read the judgment of the lower appellate Court, at p. 4,. line 36, I find the lower appellate Court has considered the evidence of the defence witnesses: It is not necessary to comment on the evidence of the defendant's witnesses. The reason given by defendant 1 (D.W. I) for a tentative division is very convincing.

(3.) So that, according to my reading of the judgment, the lower appellate Court did consider the defence evidence and was satisfied with the evidence of the first witness on the side of the defendants. I think it is a finding which is binding on me in second appeal and accordingly this contention of the learned advocate fails.