APHC010036992022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3494] FRIDAY, THE TWENTYEIGHTH DAY OF MARCH, TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NINALA JAYASURYA THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM APPEAL SUIT No. 35 of 2022 Between: A. Sobha ... Appellant and K.G. Netaji Babu and others ... Respondents Counsel for the Appellant : Sri V. Eswaraiah Chowdary Counsel for respondent No.1 : None appeared Counsel for respondent Nos.2 to 8 : Sri Tirumala Vidya Charan This Court made the following: JUDGMENT: (Per Hon’ble Smt. Justice Sumathi Jagadam) Aggrieved by the dismissal of the suit in O.S.No.4 of 2020 by the learned X Additional District Judge, Tirupati, vide judgment and decree dated 24.03.2021, plaintiff No.8 filed the instant appeal. 2 NJS,J & JS,J AS No.35 of 2022 2. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the trial Court. 3. The plaint averments are as follows: a) Plaintiff Nos. 1 to 8 and the defendant are the legal heirs of late Sri Govinda Pillai, who died intestate, leaving the suit schedule house property to his legal heirs. Late Govinda Pillai and late Janakamma were blessed with three sons and three daughters, namely, late K.G. Om Prakash, K.G. Netaji Babu, K.G. Gopalakrishna Murthy, late K.G. Lalitha, K.G. Malini, and A. Sobha. b) K.G. Om Prakash died on 02.04.2018 leaving behind his wife and two sons, who are plaintiff Nos. 1 to 3. K.G. Netaji Babu is the defendant. K.G. Gopalakrishna Murthy is plaintiff No.4. K.G. Lalitha died on 12.04.2010 leaving behind her husband and son who are plaintiff Nos.5 and 6. K.G. Malini and A. Sobha are plaintiff Nos. 7 and 8 in the suit. c) The plaintiffs, the defendant, and their father, Govinda Pillai, constitute a joint Hindu family, and the plaint schedule property is their joint family property. Late K. Govinda Pillai died intestate on 06.06.1998, and on his death, his undivided house property devolved to the plaintiffs and the defendant in their proportionate shares. d) Plaintiff Nos.1 to 3, plaintiff No. 4, plaintiff Nos. 5 and 6, plaintiff No. 7, plaintiff No. 8, and the defendant are entitled to 1/6th share each. 3 NJS,J & JS,J AS No.35 of 2022 However, the family remained a joint entity. The defendant, who is the younger son of late Govinda Pillai, is residing near the suit schedule property in the village. e) The plaintiffs, intending to have their shares separated, have been requesting the defendant to partition the suit schedule property for the last one year, but the defendant was postponing the same. Then the plaintiffs issued a legal notice to the defendant on 18.10.2018 demanding for division of the plaint schedule property and requesting his cooperation in facilitating the division. Although the defendant received the notice, he did not respond. Hence, the plaintiffs are constrained to file the suit for partition of the suit schedule property. 4. Heard learned counsel for the appellant/8th plaintiff and perused the record. 5. Specific basic errors have been brought to the notice of this Court regarding the manner in which the suit was dismissed. More specifically, the learned counsel for the appellant reiterated that Ex.A-1, copy of the sale deed was not accepted by the trial Court for partition of suit schedule property on the premise that no documents in support of the construction made on the suit schedule property were filed. It is his submission that the said document is sufficient to pass a preliminary decree declaring the rights of the plaintiffs and the defendant in the plaint schedule property. Further that summons was not served on the defendant, as such, steps were taken for substitute service, and the defendant thereafter was set ex 4 NJS,J & JS,J AS No.35 of 2022 parte. He contends that the matter requires re-adjudication by the trial Court, in the interest of justice. He relied on the following decision of the Hon’ble Supreme Court in Trinity Infraventures Ltd. Vs. M. S. Murthy1 to support his contention. The relevant portion is extracted hereunder: “113. In the case on hand, the obstructionists do not claim title under any one of the parties to the litigation. They set up independent title in themselves. What was filed by Dildar-Un- Nissa Begum was only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim. 114. Take for instance a suit filed for partition by a member of the Hindu Undivided Family. If one of the coparceners or an alienee from such coparcener, claims independent title to one of the properties bought in his individual name, it may be open to the Court while trying the suit for partition to decide whether such a property belongs exclusively to the defendant. To this limited extent, examining the title of a party to the suit schedule property is permissible even in a suit for partition. 115. But in a simple suit for partition, the parties cannot assert title against strangers, even by impleading them as proforma respondents. The strangers who are impleaded in a partition suit, may have nothing to say about the claim to partition. But they may have a claim to title to the property and such a claim cannot be decided in a partition suit.” 6. On an appreciation of the contentions raised, the point that falls for consideration is, whether the order under challenge is not sustainable and warrants interference by this Court? 1 2023 (4) ALD 69 (SC) 5 NJS,J & JS,J AS No.35 of 2022 POINT: 7. The suit was filed by the plaintiffs against the defendant for partition of the suit schedule property into six equal shares by metes and bounds, thereby allot an equal and one such legitimate share each to both the plaintiffs and the defendant and put them in separate possession and enjoyment of the same. 8. The burden is on the plaintiffs to prove that the suit schedule property is the joint family property of both the plaintiffs and the defendant, as well as to prove the validity of the sale deed. In this case, the defendant was set ex parte, and the plaintiffs contend that the suit schedule property was acquired by their deceased father. 9. The dismissal of the partition suit is based on the opinion to the effect that Ex.A-1 sale deed is insufficient to prove the ownership of the house property claimed to be of the plaintiffs’/appellant’s father, as it merely demonstrates the purchase of a "site" (land plot), and that the document alone does not establish complete ownership of the house. This implies that additional evidence is required to prove the construction and full title of the building on that land. 10. Ex.A-1 only confirms the purchase of the land plot, not the construction of a house on that land, which creates a gap in establishing complete ownership of the property as a dwelling unit. The word "site" typically refers only to the land parcel, not the structures built on it, for 6 NJS,J & JS,J AS No.35 of 2022 which the Court might find the document i.e., Ex.A.1 is insufficient to prove ownership of the house. To establish ownership of the house, additional evidence such as building permits, construction contracts, or witness testimonies etc., regarding the building process may be required. 11. In Hari Bakhsh v. Babu Lal2, it was laid down by the High Court of Bombay that in case there are two coparcener brothers, it is not necessary that there would be a separation of the family of the two brothers. The family of both brothers may continue to be joint. The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. 12. The trial Court erred by not considering the house as part of the property covered by Ex.A.1-sale deed, which may necessitate a connection to the land plot outlined in the sale deed and thus justify the inclusion of a specific claim. The sale deed, even without explicitly mentioning the house, implicitly includes the house as a built structure alongside the land plot, particularly if it is the sole structure. This Court relies on legal principles concerning the presumption of ownership based on possession and the interpretation of sale deeds, especially if the house is viewed as an integral component of the land. The 2 AIR 1924 PC 126 7 NJS,J & JS,J AS No.35 of 2022 defendant received the legal notice dated 22.10.2018, but summons were not served. Despite notice through substituted service, no appearance was caused in the suit. The plaint schedule property has been in exclusive possession of late Govinda Pillai during his lifetime as per the plaintiffs and after his demise, it was not given to anyone on lease and it is entirely in occupation of the joint family which is entitled to exclusive ownership of the property. 13. It is contextual to note that in a suit for partition, the courts must endeavour to comprehensively adjudicate and decide the proper entitlement and shares of the parties in the same proceeding. They must avoid multiplicity of proceedings or relegate parties to a fresh round of litigation. The adjudication as was done in this case in the absence of any rival claims and framing of any issues is erroneous. 14. In such view of the matter, the impugned judgment rendered on 24.03.2021 is liable to be set aside, and accordingly, it is set aside. The matter is remitted to the trial Court for framing issues and providing the parties an opportunity for trial to prove their respective legal rights over the suit schedule property and to pass order afresh. The point is answered accordingly. 15. In the result, the Appeal Suit is allowed, by setting aside the decree and judgment of the trial Court. The matter is remanded back for passing orders afresh. The plaintiffs are at liberty to file additional evidence before 8 NJS,J & JS,J AS No.35 of 2022 the trial Court in support of their case. The trial Court shall allow the parties to adduce oral and additional documentary evidence and then decide the suit afresh based on merits, uninfluenced by the observations, if any, made by this Court. The parties shall cooperate with the trial Court for early disposal of the suit, in any event, within six (6) months from the date of receipt of copy of this order. No order as to costs. Registry to remit the entire record to the trial Court, as per the standard procedure. As a sequel thereto, miscellaneous petitions, if any pending, shall stand closed. _____________________ NINALA JAYASURYA, J ____________________ SUMATHI JAGADAM, J 28th March, 2025 cbs 9 NJS,J & JS,J AS No.35 of 2022 THE HONOURABLE SRI JUSTICE NINALA JAYASURYA THE HONOURABLE SMT. JUSTICE SUMATHI JAGADAM Appeal Suit No.35 of 2022 28th March, 2025 cbs