1. This appeal is arising out of the judgment dated 30.03.2011 in A.S.No.32 of 2008 on the file of Family Court-cum-Additional District and Sessions
Judge, Mahabubnagar, which is arising out of the judgment and decree dated 29.01.2008 in O.S.No.6 of 2004 on the file of Senior Civil Judge,
Mahabubnagar.
2. For the purpose of convenience, the parties are referred to as arrayed in the original suit.
3. The appellants are the defendants. The suit was filed for partition and separate possession. The brief facts of the plaint are that plaintiff Nos.1 to 3
are the sisters of defendant Nos.1 to 3. The suit scheduled land in Sy.No.503 to an extent of 10-00 acres situated at Sankalamaddi village of Addakal
Mandal, is the self-acquired property and stridhana of their mother Smt. Rathnamma and that during the life time of said Rathnamma, she donated the
land to the Government for construction of office complex and possession of land was handedover to the Government in the year 1984 and the land
was converted into Khariz Khatha. But the Mandal headquarters could not be constructed, as Addakal was selected as Mandal headquarters. Then,
on the petition by the parties to the suit, the Chief Commissioner of Land Administration, A.P., ordered for return of land to the legal heirs of the donor
Smt.Rathnamma vide proceedings No.B4/1348/2002, dated 01.08.2002. As per the said orders, the District Collector, Mahabubnagar issued
proceedings No.B1/5116/2001, dated 23.06.2003 and directed the MRO to return the land to the legal heirs of the original donor. Accordingly, the
MRO, Addakal has complied with the orders of the District Collector and restored the names of defendant Nos.1 to 3 alone in the revenue records as
legal heirs of Rathnamma, instead of plaintiff Nos.1 to 3 along with defendant Nos.1 to 3.
4. It is the further case of plaintiffs that they have filed an application before the MRO, Addakal under Section 4 of Record of Rights Act and that
MRO, Addakal has granted succession in favour of defendant Nos.1 to 3 only, for which, the plaintiffs have filed an appeal against the illegal
succession done by MRO, before the RDO, for which, an appeal was registered as Appeal No.3013/03, as the property is the Stridhana property of
plaintiff’s mother, the plaintiffs are also equally entitled for equal shares along with defendant Nos.1 to 3, but the MRO delayed in issuing the
proceedings, for which, defendant Nos.1 to 3 filed Writ Petition No.19333/03 before this Court, wherein, directions were issued to implement the
orders of the Collector. It is the specific contention of the plaintiffs that the MRO ignored the orders of the Collector and recorded the names of
defendant Nos.1 to 3 alone in the revenue records and in view of the illegal implementation of the orders in the name of defendant Nos.1 to 3, they
converted the entire 10 acres of land into house plots and started selling the land and that the defendants executed registered sale deed document
No.3029/03 in favour of one Md.Omer for 266 square yards, and as such, the present suit was filed by the plaintiffs demanding for partition of suit
schedule land into six equal shares.
5. The defendants filed a detailed written statement denying all the allegations made in the plaint. The specific contention of the defendants is that the
lands in Sy.No.363/1 to an extent of Ac.1-22 guntas, Sy.No.363/2 to an extent of Ac.0-38 guntas, Sy.No.365 to an extent of Ac.1-39 gts., Sy.No.366
to an extent of Ac.2-30 gts., Sy.No.502 to an extent of Ac.9-11 gts., dry and the suit survey No.503 to an extent of Ac.15-34 guntas, totally an area of
Ac.32-34 guntas originally belong to one Sri Venkata Kishan Rao resident of Gundumal village of Kodangal Taluq and the entire land was under the
actual possession and enjoyment of Late Sudhakar Reddy, who is the father of plaintiffs and defendants 1 to 3 and in continuation of his actual
possession, Late Sudhakar Reddy had purchased the above land including the suit schedule property from the original owner in the year 1958. During
the life time of Sudhakar Reddy, he partitioned the entire property including the above purchased land into 4 equal shares amongst his sons i.e. S.
Ramchandra Reddy and defendant Nos.1 to 3 and the eldest son S.Ramchandra Reddy, by taking his share, has separated from his father and his
step-brothers and since then, defendant Nos.1 to 3 are living separately. It is the specific averment in the written statement that Sudhakar Reddy lived
with his three sons i.e. defendant Nos.1 to 3 till his death in 1969 and defendants 1 to 3 are enjoying their respective shares as absolute owners and
possessors of the land and perfected title over the entire property.
6. It is the further case of the defendants that Late S.Rathnamma’s two brothers, namely, Bojja Raghavareddy and B.Damodar Reddy together
have given the land in Sy.No.456 to an extent of Ac.1-27 guntas of Balmoor village and Mandal to their sisters towards “Pasupu Kumkuma†and
the same is Stridhana property of S.Rathnamma, which was cultivated by the legal heirs of her brothers, till her death and they were giving share of
the yield. After the death of S.Rathnamma, the plaintiffs herein have sold said property of their mother in favour of one Narsimulu S/o. Sailu and
Chinna Narsimulu S/o.Sailu, residents of Ananthavaram village of Balmoor Mandal for huge sale consideration amount and they alone have taken the
entire amount for themselves and that the plaintiffs have no interest over the suit schedule property i.e. the land in Sy.No.503 and that the marriages
of plaintiffs were performed long back and at the time of their marriages, sufficient amounts, gold and silver were given to plaintiff Nos.1 and 2 by
their father S.Sudhakar Reddy and the marriage of plaintiff No.3 was performed by defendants 1 to 3 and as such, they are not entitled for partition of
the suit schedule property. It is the further case of the defendants that the original owner of the suit land and also the lands purchased in other survey
numbers was clearly mentioned in the declaration in C.C.No.A/1908/75 filed by him under the Land Ceiling Act by the original owner that the suit land
and other lands shown above, were in the exclusive possession and enjoyment of the defendants which were purchased by him and therefore, the
same could not be computed as his holding of lands and that the defendants got filed separate declaration by their mother S. Rathnamma and the High
Court, in its judgment dated 25.09.2003 passed in W.P.No.19339/03 has rightly directed the revenue authorities to implement the names of defendants
1 to 3 herein in the revenue records and the said judgment has become final. As per the directions of this Court only, the revenue authorities
concerned have mutated the names of defendants 1 to 3 in ROR and other records for the suit land to an extent of Ac.8-98 cents and issued pattadar
passbooks and title deeds with regard to the ownership of the said land. Therefore, defendants 1 to 3 alone are exclusive owners and possessors of
the land and the same cannot be partitioned.
7. It is the further averment in the written statement that the plaintiffs have not taken steps to challenge the verdict of the High Court in
W.P.No.19339/03 which has become final and that the actual extent of the said land is Ac.15-34 cents, out of which, two acres was already acquired
by the Government for house sites for Scheduled Caste people of the village, in which area, houses were already constructed and the defendants 1 to
3, for the purpose of establishing the Mandal Complex in the name of their mother Smt.Rathnamma, have donated the area of Ac.10-00 cents, which
could not be established for some reasons, that ultimately out of Ac.10-00 land given by defendants 1 to 3, they got back an extent of Ac.8-98 cents
and the plaintiffs, without looking into all these aspects, have claimed total land of 10 Acres in Sy.No.503, which was wrong and incorrect. The suit
land is still in the name of original owner Venkata Kishan Rao even today and the claim for partition is imaginary and illegal, which is not maintainable
under law, and therefore, prayed to dismiss the suit.
8. Basing on the above pleadings, the trial Court has framed the following issues for trial:
“1. Whether the suit schedule property is the Stridhana property of the mother of the plaintiffs and defendants ?
2. Whether the plaintiffs are entitled for decree for partition of 1/6th share each in the suit schedule property with separate possession ?
3. Whether the plaint schedule property is the self acquired property of the father of the parties and that whether it was partitioned among the
defendants and one more brother even during the life time of the father ?
4. To what relief ?â€
9. On behalf of plaintiffs, PW.1 was examined and got Exs.A-1 and A-2 marked. On behalf of defendants, DW-1 was examined and got Exs.B-1 to
B-43 marked. The trial Court, after considering the rival contentions and the material on record, decreed the suit by partitioning the suit schedule
property into six shares by allotting 1/6th share to each of the plaintiff and also granted separate possession.
10. Being aggrieved by the judgment and decree of the trial Court, the defendants in the suit have preferred appeal before the Family Court-cum-
Additional District and Sessions Judge, Mahabubnagar, vide A.S.No.32 of 2008. The appellate Court has framed the following points for consideration
:
“1. Whether the suit schedule property was purchased by S. Sudhakar Reddy from Venkata Kishan Rao in the year 1958 ? If so, late Sudhakar
Reddy became absolute owner of suit schedule property ?
2. Whether suit schedule property is self-acquired Stridhana property of late Rathnamma ?
3. Whether plaintiffs are entitled to seek partition of suit schedule property and for allotment of their 1/6th share each and for separate possession as
prayed for in O.S.No.6/2004 ?
4. Whether there are any grounds to interfere with the Judgment and Decree of learned Senior Civil Judge at Mahabubnagar made in O.S.No.6/2004
dt.29.1.2008 ?
5. To what relief ?â€
11. During the pendency of appeal, plaintiffs have filed a petition to recall PW-1 for the purpose of marking some documents and Exs.A-3 to A-11
were marked as additional evidence before the appellate Court. On appreciating the entire evidence on record and considering the rival contentions of
the parties, the appellate Court has dismissed the appeal, confirming the judgment of the trial Court. Hence, this Second Appeal is preferred by the
defendants. The following substantial questions of law were framed :
“i) Whether the courts below were right in holding that the suit property belongs to Sthreedhana of Smt. Late Ratnamma (Mother of the parties) or
self-acquired property of the appellants and their father.
ii) Whether the court below right in ignoring the material evidence in Ex.B-1 to B-43 which contain the specific recital about the title and possession.
iii) What is the weight of the evidence in Ex.A-1 to A-11.
iv) Whether the lower courts right in determining the case in absence of true and trustworthy evidence.
12. It is the specific contention of the learned counsel for appellants that there is no documentary evidence on record to show that the property
belongs to their mother Late Rathnamma and inspite of it, both the Courts below have decreed the suit in favour of plaintiffs on the ground that
plaintiffs being the daughters of Rathnamma, are entitled for 1/6th share, which is bad in the eye of law. It is also contended by the learned counsel for
the appellants that Ex.A-3 is only the copy of representation and Exs.A-4 to A-11 are the revenue documents, which do not confer any title on said
Rathnamma and therefore, the first appellate Court has not appreciated the documentary evidence in proper perspective and in the absence of true
and trustworthy evidence, it is a fit case to allow the Second Appeal by setting aside the orders of both the Courts below.
13. The learned counsel for the appellants, in support of his contentions, has relied on the judgment of Hon’ble Supreme Court in Easwari v.
Parvathi & others (2014) 15 SCC 255, wherein, it is held that, “the High Court can interfere in second appeal when finding of the first appellate
court is not properly supported by evidence. The High Court cannot be precluded from reversing the order and judgment of the lower appellate Court
if there is perversity in the decision due to mis-appreciation of evidence.â€
14. On the other hand, the learned counsel for respondents has contended that the ROC letter of the District Collector disclose that initially the
property was donated in the name of Rathnamma to the Government for constructing Mandal headquarters, which has been returned which itself
shows that the property is in the name of Rathnamma and therefore, the plaintiffs are entitled for a share in the said property.
15. Under Section 100 of CPC, there is very limited scope for interference. The substantial questions of law to be considered in this Second Appeal
are;
“1. Whether the suit schedule property which is in Sy.No.503 to an extent of 10 acres, is property of Late Rathnamma, being given by her parents
or not, in which, the plaintiffs are entitled for partition or not, in the absence of any title ?â€
2. Whether the revenue records confer any title in respect of the property ?
16. On perusal of the entire evidence, it is evident that the documents relied on by the defendants disclose that the suit schedule property was donated
in the name of Rathnamma in the year 1984 and since Mandal Complex could not be constructed, Government ordered to re-deliver the said land to
the legal representatives of the donor/Smt. Rathnamma. On perusal of the documents filed by the plaintiffs before the Court, it is evident that Exs.A-1
and A-2 are the notices issued by the plaintiffs to the MRO and RDO for recording the names of defendant Nos.1 to 3 as successors of the suit land.
The entire evidence on record discloses that the plaintiffs have filed suit for partition and allotment of 1/6th share to each of them. The trial Court have
come to the conclusion that the suit schedule property is in the name of their mother, which was donated for the purpose of Mandal office and again it
was delivered back by the Government. There is no iota of evidence before the Court to show that the said property belongs to Rathnamma. The
plaintiffs did not file any document to prove that the suit schedule land is in the name of Rathnamma. As per Section 101 of Indian Evidence Act,
whoever asserts a particular fact, it is for them to prove the same. Therefore, the initial burden is on the plaintiffs to prove that the property is in the
name of Rathnamma, in which, they are entitled for a share. Without establishing the title of Rathnamma in respect of suit land, the plaintiffs cannot
seek any relief for partition of the said property. Admittedly, the land was donated to the Government in the name of Rathnamma and it has been re-
delivered to defendant Nos.1 to 3 as legal heirs of Late Sudhakar Reddy. Exs.B-1 to B-15 are the Khasra pahanis in respect of the suit land starting
from the year 1954-55 to 1999-2000, which are in the name of the original owner and pattadar of the land Late Sudhakar Reddy. Exs.B-16 and B-17
are the certified copies of ROR and letter of RDO, dated 10.10.1990. All the documents relied on by the defendants show that they are in possession
of the said land and they have succeeded to the land from their father. The judgment dated 25.09.2003 of this Court in W.P.No.19339 of 2003 disclose
that a specific direction was given to the revenue authorities to implement the orders of the Collector forthwith. Admittedly, no writ appeal was
preferred by the plaintiffs challenging the orders of this Court. The initial burden is always on plaintiffs to prove that they are entitled for the relief.
The additional evidence filed vide Exs.A-3 to A-11 also does not disclose that Rathnamma is the original owner of the property. Both the Courts have
erred in giving a finding that Rathnamma has donated the said property in the year 1984 for construction of Mandal complex and came to the
conclusion that Rathnamma is the owner of property, and therefore, the plaintiffs are entitled for 1/6th share each. The Courts below cannot presume
that the property is in the name of Rathnamma, without there being any documentary evidence. Admittedly, the parties are none other than the real
brothers and sisters. Moreover, there is no document before the Court to prove that Rathnamma has inherited the suit schedule property by way of
‘pasupu kumkuma’. The plaintiffs have not examined their maternal uncles to prove that the land was given to their mother by way of Stridhana
in order to substantiate their contentions. PW-1 alone was examined and the entire evidence is nothing but reiteration of the plaint. This is not a suit for
possession but it is a suit for partition seeking right over the property. Therefore, this Court is of the considered view that without there being any
documentary evidence to prove about the right over the property, the Courts below cannot pass decree in a suit for partition. Ex.A-4 shows that an
extent of 2 acres of land in Sy.No.503 was covered by Government house sites and remaining extent is in possession of Sudheer Reddy, Johan
Prathap Reddy and Ranga Reddy. As per Exs.A-5 to A-8 i.e. pahanis for the years from 1954-55 to 2000-2001, Sri Venkata Kishan Rao was the
pattadar of the suit schedule property to an extent of 15 acres and the father of the plaintiffs and defendants were in possession of the said land. On
perusal of Exs.A-9 to A-11, it is evident that the names of Sri Venkata Kishan Rao and Government Mandal Complex were shown as pattadars of the
said land.
17. On perusal of the above documents, it is evident that the defendants have come up with right contention before the Court that 2 acres of land was
acquired by the Government for providing house sites to Scheduled Caste people and the remaining land was in possession of their father. It is the
specific admission of PW-1 in her evidence that she did not file any registered sale deed before the Court to prove that the property is in the name of
her mother. Though it is the evidence of PW-1 that there is passbook in the name of Rathnamma, the same was not produced before the Court and
further, it is the specific contention of plaintiffs that they were not aware of the acquiring of the land and as to the compensation paid to the
defendants.
18. On the other hand, the evidence of defendants disclose that DW-1 and his brothers have donated the land to the Government in the name of their
mother, in her memory and as on the date of donating the said land, their mother was alive. They have also filed a copy of the sale deed, to prove that
the purchase was made by their father from one Kishan Rao, but his father’s name was not mutated in the revenue records, but after the death of
their father, they got mutated their names in the revenue records in the year 2007. The evidence of defendants further disclose that they have made
an application to the Collector for return of the suit property, as the Mandal Office was not constructed in the land, for which, the Collector has issued
proceedings to return the land and his evidence also disclose that they have applied for mutation of their names in the revenue records being the legal
heirs of Rathnamma. On perusal of the entire evidence on record, it is evident that there is not even a scrap of paper to prove that the land belongs to
Rathnamma, for which, the plaintiffs have a right over the property for seeking partition. In the absence of such evidence on record, this Court is of
the considered view that both the Courts have erred in granting the decree in favour of plaintiffs.
19. The learned counsel for respondents has relied on the judgment of Hon’ble Supreme Court in V.Prabhakara v. Basavaraj K. (Dead) by Legal
Representatives & another (2022) 1 SCC 115, wherein, it is held as under:
“A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the
parties know each other’s case very well and such a pleading is implicit in an issue. Additionally, a Court can take judicial note of a fact when it is
so apparent on the face of the record.â€
The aforesaid judgment is in no way applicable to the facts of the present case. On the other hand, the judgment relied on by the learned counsel for
appellants in the case of Easwari v. Parvathi ((2014) 15 SCC 255 supra) is squarely applicable to the facts and circumstances of the present case.
20. Furthermore, it is not the case of the plaintiffs that they are entitled for the share of the property of their father Late Sudhakar Reddy for an extent
of Ac.32-00. The State amendment made to the Hindu Succession Act has come into force in the year 1986 and Central Amendment has come into
force in the year 2005. It is not in dispute that the father of plaintiffs 1 to 3 and defendants 1 to 3 died in the year 1969, thus, as on the date of
amendment of Hindu Succession Act, the father of plaintiffs is no more.
21. As per the judgment of the Hon’ble Apex Court in Prakash and others v. Phulavati and others (2016) 2 SCC 36, daughters can claim for
partition of property of the male Hindu, only during his life time. However, the case of the plaintiffs is that they are entitled for 1/6th share in the
property of their mother Rathnamma, as their mother inherited the property as Stridhana. Therefore, it can be construed that the plaintiffs have
miserably failed to prove that the suit scheduled property is the Stridhana property of their mother Rathnamma, as there is no specific documentary
evidence to show that the property was in the name of Rathnamma. It is relevant to mention that the order of Collector, directing MRO to return the
property to the legal heirs of Rathnamma does not confer any title, in order to claim right by the plaintiffs. Therefore, the plaintiffs are not entitled to
seek for partition of the suit scheduled property, in the absence of establishing that the property belongs to their mother Rathnamma, as she got it by
way of Stridhana.
22. For the aforesaid reasons, this second appeal is allowed, setting aside the judgment and decree dated 30.03.2011 in A.S.No.32 of 2008 on the file
of Family Court-cum-Additional District and Sessions Judge, Mahabubnagar. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
