'1 . Surajmal Panwar v. Smt Shiv PyarioBdi

deed dated 02.05.2006. Thus, the plaintiff became the absolure owner and possessor of the two mulgies bearing Municipal Nos. l5-7-389 and 390 situated at Begum Bazar, Hyderabad. During his lifetime, the husband of the plaintiff had given the above two properties as collateral security and guarantee for the loan obtained by the defendant No.3. The loan taken by the defendant No.3 from M/s.Vijaya Bank, Bank Street, Hyderabad was discharged by the husband of the plaintiff and got released the same from the mortgage.

5.1. During his lifetime, the husband of the plaintiff had let out the mulgi bearing Municipal No.15-7-389 to the tenant and rent was being collected by him. Insofar as the suit schedule property concerned, the husband of the plaintiff had given the same to the 4 Dr CRRJ C(CA Nos 205 & 22E oJ 201, .f defendant No. I being his relative for carrying on b usiness. The said possession was only pennissive in nature. As thr: defendant No. 1 , without any right had parted with the possessior of the schedule property in favour of a third person, the plaintiff and her sons requested the defendants to vacate and hand over the vacant possession of the schedule property. As the defendants had evaded an( avoided to vacate and hand over the vacant possession of the suit schr,dule propefty, the plaintiff got issued a legal notice dated 03.08.2008 to the defendants calling upon them to vacate and hand-over the vacan,. possession of the suit schedule propefty. The delendant Nos. I to 3, on 'eceipt of the legal notice, got issued a joint reply notice dated 20 08.2008 and the defendant No.4 got issued a separate reply through their counsel. In their reply, the defendant Nos. I to 3 claimed that t re husband of the plaintiff was the owner of mulgi bearing No.l5-7-189 only and the defendant Nos.l and 2 were the owners of the mulgi bearing No.15-7-

390. They denied the nature of possession beinl permissive. The defendant No.4 claimed that the premises under hi ; occupation, was municipal land and did not form part of t[.re suit prope]ty. In view of the denial of right, title and interest of the plaintiff in respect of the suit propefty, left with no other remedy, the plaintiff fileC the suit seeking 5 CCCA Nas.)t)5 & 228 a:/ 2019 the above reliefs of declaration, injunction, mesne profits for use hnd occupation as damages.

6. The defendant Nos. I to 3 had initiatly filed a written statement in November, 2009 and subsequently filed another written statement cum counter claim in the month of October, 2010. They contended that mulgi bearing No.l5-7-389 and 15-7-390 were purchased out of the joint family funds i.e. from the funds of Partnership Firm Chunnilal Ganga Bishan. The said Finn was established 60 years ago by their ancestors i.e. late Ramial Panwar and Sri Ganga Bhishan Subsequcntly, the late husband ofthe plaintiffSri Balkishan Panwar and defendant No. I had joined as partners in the said Firm. During the said period, litigation commenced with the vendors of the said premises. Late Balkishan Panwar, husband of the plaintiff, being a practicing Lawyer, was prosecuting the proceedings on behalf of the joint family. However, defendant No. 1 was also actively involved in the entire litigation and obtained possession of the property from the Court when the tenant was evictcd and the matter was fought up to Hon'ble Supreme Court of India. However, when there was an enquiry by the Income Tax Department in respect of the acquisition of the said property, late Sri Balkishan Panwar had acknowledged in writing specifically that the 6 DTCRR.J L'( (:A Nos 205 & 228 of)019 total sale consideration was Rs.34,000/- out of which only Rs.6,000/_ was paid by him out of his own eamings and the balance of Rs.2g,000/_ was paid by him by withdrawing the said amormt fron the partnership Firm chunnilal Ganga Bhishan panwar. In the face ,f the said crear admission, the allegation by the praintiff that the properr / was purchased by late Sri Balkishan Panwar out of his individuat eamirrgs and thus, he was the absolute owner of the same was a blatant lie.

6.I. The defendant Nos.l to 3 further submitt:d that late Sri Ramlal Panwar passed away in 1989 and Sri Ganga tthishan panwar passed away in 1991. In view of the death of both trre elders in the family, a family arrangement was arrived at in be tween late Sri Balkishan Panwar on one side and the sons of late Sri Ganga Bhishan Panwar i.e. defendant Nos. I and 2 and Sri Bhagawanda;, the other son of late sri Gang.a Bhishan Panwar on the other side. tn p ursuance of the said arrangement, mulgi bearing No.15-7-3g9 lelt to tl:e share of late Balkishan Panwar and mulgi bearing No. 15-7-390 lell .o the share of sons of Sri Ganga Bhishan Panwar i.e. defendant Nos.1 and 2 and Sri Bhagawandasji. Accordingly, since l99l all along tht propefty was being enjoyed by the defendants as absolute owners therr of. There was no question of any permissive possession or payrnent of rent. 7 Dt-CRRJ CCCA Nos 20t & 22E of2ot9 Unfortunately, in view of laith reposed by the members of the family 6n each other, registered documents were not obtained evidencing the said arrangement. However, the fact would remain that admittedly, the consideration of acquisition of the property was paid by the Partnership Firm Chunnilal Ganga Bhishan Panrvar alone. In fact, Rs.6,000/- which was paid as advance was also reimbursed to late Balkishan Panwar at a later point of time and for all practical purposes, the suit schedule property and adjacent mulgi were trcated as joint family property purchased out of the funds ol joint family business of Chunnilal Ganga Bhishan Panwar.

6.2. The defendant Nos.l to 3 further submitted that for all these years, there was never any contrary claim made and as such, no necessity was felt to obtain any document per-se. Unfortunately, such a claim was made for the first time by the plaintiff vide her legal notice dated 03.08.2008. In the said circumstances, the defendants were constrained to seek the relief of declaration as a counter-claim being made on their behalf. The plaintiff fited the present proceedings with a malafide intention to take benefit of the name of Sri Balkishan Panwar alone appearing in the document and prayed to dismiss the suit filed by the plaintiff and to declare the delendant Nos.1 and 2 and their brother 8 Dr.GRll../ ( ( C1 ,\os 20) & 228 oI2Al9 Sir Bhagawandas as absolute owners of the surt ;chedule property bearing No.15-7-390 admeasuring 34.33 sq. yds., situated ar Begum Bazar, Hyderabad.

6.3. [n the written statement cum countcr r taim filed in the month of october, 20r0, while reiterating their contcntions that the said propefiy was purchased by the joint famiry, the dere ndar.rt Nos.r to 3 contended that the inter se collusive document betweer three sons ofthe plaintiff and late sri Balkishan panwar was of no consequence and the same would not cloth the plaintiff with absolute rigrts in respect of mulgies No.l5-7-389 and 390, as the original purchase in the name of late Sri Balkishan Panwar was not exclusive acquisitiorr of him, but was an acquisition by the joint family. They also denied rl- at the loan taken by defendant No.2 from Vijaya Bank was discharged by the husband of the plaintiff and contended that there was a Firm und:r the name and style of "Kundarmal Ramlal,, consisting of Sri Ba kishan panwar, Shyam Sunder, Sri Surajmal panwar and Sri Kamal Kistore. Sri Kamal Kishore had established another Firm in the name of ,, -axrni Gardens,, and a loan was obtained from Vijaya Bank. Late Sri Brrtkishan panwar and Smt. Shanta Bai, wife of defendant No. l, stood as guarantors and the entire loan amount was RakfbV the Firm Laxmi jardens. They 9 Dr CRAJ ( (:(.4 Not z't & )28 of20t9 stated that on behalf of the joint family, the mulgi bearing No. 15-7-389 was let out to a tenant. However, the rent was not collected by the husband of the plaintiff but, in [act, rhe delendant No.l used to collecr and pay it to the husband of the plaintifl As per the arrangement arrived at between the parties, the delendants never made any claim in respect of mulgi No. 15-7-389 in view of the arrangement arrived at amongst the members of the joint famity. As such after the death of late Sri Balkishan Panwar, the defendants instructed the tenant to pay all the rents directly to the plaintiff. They contended that the defendant No.4 had nothing to do with the suit schedule property. He was having his pan dabba outside the suit schedule propefty in Govemment's land.

6.4. Though the defendant Nos. I to 3 contended in their written statement that the mulgi bearing No. l5-7-390 i.e. suit schedule property fell to the share of the sons of late Sri Gangabhishan Panwar i.e. defendant Nos.l and 2 and Sri Bhagwandasji, the said Bhagawandasji was not included as a party in the counter claim filed by defendant Nos.l to 3.

7. A separate written statemcnt was filed by defendant No.4 submitting that he had no concem whatsoever with the suit schedule propedy and it was defendant Nos. I to 3 alone who were the absolute t0 I)t(;RR..l l l t .1 .\'t)\ )l)j & ):8 ol )0lt) owners in possession of the same. The ptaintiff had ur neccssarily made him as a par1y to the suit and the suit was liable to be disrnissed on the ground of mis-joinder ol party. He further submi ted that he was carrying on business of pan dabba on the footpath i.e. govemment land and the said pan dabba was not erected within the suit r chedule propefty and adopted the written statement fited by the defendan: Nos.l to 3.

8. The plaintiff filed a rejoinder to the counter craim ofdefendant Nos. I to 3, submitting that the alleged purchases werc the sell acquired properties of her husband. There was no such joinr l,rmily es claimed and alleged, and denied that the properties were purchascd out ol the funds of the Firm Chunnilal Ganga Bishan Panwi r. She lurther submitted that her husband filed O.S .No.596 of 197 l,rn the file of the I-Additional Chief Judge, City Civil Court, I{yderarad lor specific performance of agreement of sale dated 01.08. 1970 against Smt. Afsar Naseem Khatoon and another. At the time of institrrtion ol the suit itself, one Harikishan was in occupation of the premisc ; bearing No. t5- 7-389, Begum Bazar, Hy derabad and Ganga Bhishan r,ras rhe tenant in the suit premises bearing No.l5-7-390, Begum Bazar, llyderabad. The suit instituted by the husband of the plaintiff was decrued in his favour vide judgment and decree dated 23.08. 1976 directing rhe owner Dr GPJl J ((:CA Not )45 & ))8 of2019 Smt. Afsar Naseem Khatoon to execute the sale deed in respect of both the premises and directing Sri Harikishan to also join in the execution of the sale deed insofar as it related to mulgi bearing No.l5-7-389, Begum Bazar, Hyderabad. Aggrieved by the said judgment and decree dated

23.08.1976 passed in O.S.No.596 of 1971 on the file of the I-Senior Civil Judge, City Civil Court, Hyderabad, the delendants in the said suit prefened an appeal bearing CCCA No. 154 of 1976 on the hle of the High Court of Andhra Pradesh insofar as it related to the premises bearing No.15-7-389, Begum Bazar, Hyderabad. No appeal was preferred in respect of the suit propeny. The above appeal was dismissed. Aggrieved by the said dismissal of the appeal, Sri Harikishan preferred Letter Patent Appeal LPA No.67 ol 1978, which was also dismissed by the High Court. Aggrievcd by the said order of dismissal, Harikishan preferred SLP No.5526 of 1978 before the Hon'ble Apex Court, which was also dismissed vide order dated l3.l1.1980. Thus, the judgment and decree passed in O.S. No.596 ol l97l became final and binding on the defendants also.

8.1. The ptaintiff further submitted that in pursuance of the decree passed in O.S. No.596 of 1970, the husband of the plaintiff filed E.P. No.16 of 1978 since the defendants in the said suit did not comply I I2 Dr(iR.R..l a( 1 ,1 Xa\ )0i d ))3 nl )l1t) - with the decree. Sri Harikishan who was the defendanr No.2 in the said suit filed E.A. No.200 ol 1978 seeking review of thr: draft sale deed filed by the husband of the plaintiff. The said EA No.200 of [978 was dismissed. Against the said order, he filed CRP No.1475 of 1979 as we[[ as CMA No.366 of 1979 before the High Court of Judicature, Andhra Pradesh. The CMA was dismissed as not mai:rtainable and the CRP was dismissed on merits. Aggrieved by the dismissal of the CMA No.366 of 1979, Harikishan preferred LPA No. I l5 of 1919 before the High Court of Judicature, Andhra Pradesh, which n as dismissed on l5.l1.1979. Against the said dismissal, Harikishar prelerred S[-P No. 156 of 1980 before the Hon'ble Supreme Court of ndia, which was dismissed on 10.01.1980. After the dismissal of the natters before the Hon'ble Apex Courl, the warrant of execution was iss red in respect of both the premises bearing No.15-7-389 & 390, situated at Begum Bazar, Hyderabad. In pursuance of the warrant of delivery ol possession, the premises bearing No. 15-7-389 was delivered to the husband of the plaintiff, represented by his brother, defendant No.i herein. The husband of the plaintiff authorized defendant No.1 to take delivery of premises bearing No. l5-7-389. DTCRR.J C(:CA Not )Ai & ,8 oJ20l9

8.2. The plaintiff further contended that insofar as the suit premises was concemed, Ganga Bishan was the tenant. The delivery of possession in respect of the suit property was affected by way of attornment of tenancy. The said fact was also evident from the panchanama conducted at the time of execution. The possession was delivered to the husband of the ptaintiff in his individual capacity and not in any other capacity. The husband of the plaintiff fought the legal process titl Hon'ble Supreme Court of India. The def-endant Nos.l to 3 were not involved in the said litigation as claimed by them. The entire expenditure for the litigation right up to the Hon'ble Apex Courl was bome by the husband of the plaintiff from his personal funds. Except the husband of the plaintiff, no other person was owner of the suit schedule property. The suit property was never purchased or acquired lor and on behalf of any joint family as claimed by the defendants. The defendant Nos..l to 3 were making false claim that the suit properly was a joint family property. The husband of the plaintiff addressed a letter dated 16.04.1989 to the Municipal Corporation of Hyderabad to mutate his name. She further submitted that Vijaya Bank had instituted a suit against defendant No.2, husband of the plaintiff and another for recovery of loan obtained by defendant No.3 herein. The husband of the l4 Dt(;Nt.J (:C(:A Not )0j ,! 2281[2419 plaintiff was only a guarantor and had given the suit property as collateral security for the loan obtained by defendant No.3. The said suit was decreed vide judgment and decree dated 08.03.2000. Subsequently, the rnatter was settled with the Bank. l'he decree of the said bank was also satisfied by the husband ofthe plaintiff. She further denied that her husband was partner of the Firm as claimed by the defendants. She further submitted that to her knowledr;e, the defendant No. I collected rents only in the absence of the husbar d of the plaintiff on his behalf but not otherwise. The receipts for the rent paid by the tenants were issued by her husband. The defendants hrrd illegally taken separate municipal number for the suit premises witho rt the knowledge and consent of the ptaintiff or her husband. The delt:ndant No.4 was falsely claiming that he was carying on business on footpath on the govemment land. The said claim was false and created to affect the rights of the ptaintiff.

8.3. The plaintiff furlher submitted that her husband was only a sleeping partner in the Firm Chunnilal Ganga Bishar Panwar by an order of the Bar Council dated 15.10.1979 for a period of three years She denied the other averments made by the defendar ts in the counter claim and contended that the counter claim was not maintainable as t5 Dr liRR,l CCCA No! )Ai & )),1o[]0t, Bhagawandas was not a party to the suit and no decree could be passed in lavour of a person who was not a party to the suit and the counter claim was liable to be rejected on the said ground.

9. The defendant Nos. 1 to 3 filed a rejoinder to the rejoinder filed by the plaintiff denying the averments made by the plaintiff in hcr rejoinder.

10. Basing on the above pleadings, the following issues were settled by the trial Court. i) ii) Whether the plaintiff is entitled to the declaration as prayed for? Whether the defendant Nos. I and 2 are entitled to declaration as prayed in the counter claim? iii) Whether the plaintiff is entitled for the possession of the suit schedule property? i") Whether the plaintiff is entitled to past and future mesne profits as prayed for? v) To what reliefl 1 1. During the course of trial, the third son and GPA hotder of the plaintiff was examined as PW.1 and Exs.Al to A27 were marked on behalf of the plaintiff. On behalf of the defendants, three witnesses were examined. The defendant No.l was examined as DW. l. The son of the defendant No.4 was examined as DW.2. During the course ol l6 DIARR.J C((:ANo\ 205 & 22Eol2019 trial, the defendant No.2 died and his legal representati ves were brought on record as defendant Nos.5 to 7. Defendant No.5 f led her evidence afhdavit as DW.3, but she lailed to appear for. cross- :xamination. As such, her evidence was eschewed from consideration. Exs.Bl to 816 were marked on behalfofthe defendants.

12. On hearing both the leamed counsel represtrnting the parties, the trial court decreed the suit filed by the plaintiff and dismissed the counter ctaim filed by the defendantNos. I to 3. Aggrieved by the said judgment and decree passed by the trial couft in O.S. No.541 of 2008, dated28.02.2019, the delendant Nos.l and 3 to 7 prelerred both these appeals.

13. Heard Sri A.M. Qureshi, leamed Senior Cot nsel representing Sri Sardar Jasbeer Singh, Iearned counsel on record 1br the appellants and Sri G. Arun, learned counsel for the respondent.

14. Leamed Senior Counsel for the appellants contended that the plaintiff had not entered into the witness box, only the GPA holder was examined on her behalf as PW. 1 . PW. I admittr:d in his cross- examination that he did not know the contents of GPrr. and whether he had power to depose. As such, the evidence of P!/.1 could not be t7 Dt(;l?RJ C(CA N.s 20j & )2Aof20t9 accepted. The admitted facts need not be proved. The court bdlow failed to take into consideration that the plaintiff in her rejoinder had admitted that her husband was a sleeping partner in M/s.Chunnilal Ganga Bishan Panwar Partnership Firm. As such, it was evident that there existed a joint family and the joint family has a nucleus. PW.l, son of the plaintiff, admitted the signature of his father on Ex.B3 and also admitted its issuance to the Income Tax Department. Ex.B3 would prove that the husband of the plaintiff withdrew Rs.28,0001 from the account of the joint family partnership Firm to deposit consideration in the Court in order to purchase the suit schedule property. The court below failed to consider the legal principle that the appellants- defendants having proved the existence of a joint family business, the burden was shifted on the plaintiff to prove that it was the self- acquisition of her husband. The court below failed to take into consideration that the suit schedule property was owned by defendant Nos. I to 3 owing to the oral family arrangement arrived at between the parties after the death of their ancestors and that they remained ln possession since 1991 as owners and not as permissive possessors. The plaintiff faited to file any proof to substantiate the plea of permissive possession put forth by her. r8 DtGNIJ (Ca/ Nos )0t & 228 oI2019 l4.l . Learned Senior Counsel further submitted that the court below failed to consider that Ex.B3 itself was sufficient evidence to prove that the suit schedule propefty and the adja':ent mulgi was purchased from the joint family funds or the funds fronL the partnership business since PW.i not only admitted the issuance of Ex.B3, but also admitted the contents therein as genuine. The court belrw failed to note that the husband of the plaintiff was not the absolute c wner of the suit schedule property as evident from the cross-examinatirn of PW.1 and Exs.Bl to 83, as such, the gift as executed by the sons of the plaintiff in her favour was of no significance. The reliance plated by the court below on Ex.A27 Memorandum of Understanding wi,s mis-placed as the said document was not signed by all the parties, as deposed by DW.1 during his cross-examination. The court below ought to have dismissed the suit as against defendant No.4 on account of mis-joinder of parties as he was no way concemed either with the plaintiff or de fendant Nos.1 to

3. The documents filed by the defendant No.4, Exs.B .1 to 816 would prove that he was running his business outside the suit schedule property and was not in possession ofany part ofthe suit schedule property' The plaintiff failed to prov€ that any part of the suit sched-rle property was released in favour of defendant No.4 and prayed to allo w the appeals by l9 DlCRAJ (:{:( A Nos 205 & t2tl of20l') setting aside the judgment and decree of the trial court in O.S. No.54l of 2008 dated 28.02.2019 and relied upon the judgments of the Hon'ble Apex Couft in Vidhyadhar v. Manikrao & Anr.r, on the aspect that where a party to the suit does not appear into the witness box and states his own case on oath and does not ofler himself to be cross examined by the other side, a presumption would arise that the case set up by him was not correct.

14.2. He further relied upon the judgment of the Hon'ble Apex Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd., and others2 on the aspect that the power of attorney holder could not depose in place and instead of principal. He further placed reliance upon the judgment of the Hon'ble Apex Court in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Ors.,3 on the aspect that once initial burden was dischatged by the person that the propefty was a joint Hindu Family and further the properties were acquired out of that nucleus, then the burden would shift to the party alleging self acquisition to establish affirmatively that the property was ' r999 (3) scc 571 ' AIR 2oo5 sc 439 r AIR 2oo7 sc 218 20 DICH? J ( (:( A Not )05 & ))tt 0[2019 acquired without the aid of the joint family property by cogent and necessary evidence.

14.3. He lurther relied upon the judgment of th: Hon'ble Apex Court in Union of India v. Ibrahim Uddin and another{ on the evidentiary value of admissions and that they can be held as substantive evidence and operate as estoppel in certain circumstance ;.

15. Learned counsel lor the respondent, on -he other hand, contended that PW. I was the son ol the plaintifl rnd one of the executant of Ex.A3 Gift Settlement Deed dated 02.05.2006. He was having personal knowledge of all the lacts of the case. l'he plaintiff was an old lady. Non-examination of the plaintill was not fatal in view ol the documentary and other material evidence availablc on record. He further contended that the plaintifl was claiming right. Litle and interest through her husband and children under Exs.A2 and A3 The defendants had not disputed the execution of sale deed in lavour ol thc husband of the plaintiffby the Court in pursuance ofthe decree plssed in the suit under Ex.A2. The properties purchased under Ex.A2 were the self acquired properties of the husband of the ptaintiff and not part of any joint famity or of the Firm. The husband olthe plaintiff got his name o zotz 1E; scc tla 2t D.GRRJ (:CCA Nos.)05 & 2)8 oI2A19 mutated under Ex.A2l and Municipal taxes were paid by him during'his lifetime and thereafter by the plaintiff and her children. If really, the joint family or Firm had any right in respect of the suit schedule property, they would have gor mutated their name in GHMC and paid the Municipal taxes. The Municipal tax receipts were marked as Exs.A6 to A8. No objection was raised by the defendants for the said mutation. The conduct of the defendants would also prove that it was the self acquired property of the husband of the plaintiff.

15.i. Learned counsel for the respondent further submiited that various appeals filed against the judgment and decree in O.S No.596 of l97i and E.P. No. 16 of 1978 in rhe said suit would clearly prove that the suit property was the self acquired property of the husband of the plaintiff. The husband of the ptaintiff late Balkishan Panwar fought the Iitigation for ten long years up to the I{on'ble Supreme Court. The expenses for the said litigation were bome by him alone. No evidence was produced by the defendant Nos.l to 3 to show that they have contributed any expenses for the said litigation. The possession of the mulgies was also delivered ro the husband of the plaintiff in his individuat capacity, but not on behalf of any joint family or Firm. DW. I also admitted in his cross-examination that late Balkishan panwar filed 22 DrGRR..t CC( A Not 205 & 22E oI2019 O.S. No.596 of 1971 in his individual capacity. fhe respondent- plaintiff had filed I.A. No.l of 2019 In CCCA No. l05 of 2019 for receiving the document marked as Ex.A27 , agreement , lated 04.03. 1 992 between the defendants inter se which would clearly plove that the suit propefty was the property owned by the husband of tlLe plaintiff. The defendants had not disputed Ex.A21 . It could not lre inferred from Ex.B3 that the withdrawal of Rs.28,000/- from the Fimr would make the suit schedule property as property of the Firm. DV,/. I categorically deposed that the suit schedule property was not the pro;'erty of the Firm No proof was filed by the defendants for reimburs.ing the sum of Rs.6,000i- to tl.re husband of the plaintiff. The tr al court rightly interpreted Ex.B3 observing that the defendants did rot produce any piece of evidence to show that the suit property was pu chased from the joint family funds or from the funds of the Partnerr,hip Firm. The findings of the trial court in respect of Ex.B3 were ba.;ed on evidence. Cogent reasons were given by the trial court lor giving such findings The evidence of PW. I was misinterpreted. The docunrentary evidence would prevail over oral evidence of witnesses on rither side. No document was filed by the defendants to prove the e (istence of joint family or any joint family business. There cou [d not be any 23 Dr GR^J CCC,I Nos 2L)i & )28 aI2019 presumption of existence of joint family. No evidence with regard to nucleus of the alleged joint family was produced.

15.2. He further submitted that the p(operry was not shown as joint family property in any income tax returns of the defendants or as an asset or propefty of the Firm. Exs.BS to B l0 proceedings were initiated by defendant Nos. I to 3 before the Courts in the State of Rajasthan for partition of the alleged joint family properties. However, the suit propefty was not shown as part of the said proceedings. Admittedly, the said proceedings were instituted during the pendency of the present suit before the trial court. No evidence was adduced by the defendants to prove that there was a settlement or partition. No details of the parties present were given. It was only a vague and created defence for the purpose of the suit and for all the said reasons prayed to dismiss the appeals and to confirm the judgment and decree passed by the trial court. He relied upon the judgments of the Hon'ble Apex Court in R.V.E.Venkatachala Gounder v, Arulmigu Vishweswaraswami and V.P. Temple and anothers on the aspect that onus to prove title of the property undoubtedly is on the person asserting title to the property. The respondent-plaintiff proved her title, but the appellant- ' AIR 2oo3 scc 4548 24 DTGRR,J (:CC) !'o5 205 & 228 ol 2419 defendants, who also filed the counter claim failed to prove their title to the suit schedule propefty.

15.3. He further relied upon the judgment of the Hon'ble Apex Court in C. Doddanarayana Reddy (Dead) by LRs. and others v. C. Jayarama Reddy (Dead) by LRs., and others6 on the rspect that when the trial court passed its findings in accordance with t re provisions of law and material documents, the same could not be inter lered with.

15.4. He fuither relied upon the judgment of the Hon'ble Apex Courl in Government of Goa v. Maria Julieta Dspiza (D)7 wherein, the l{on'ble Apex Court made a clear distinction betwe:n the burden of proof and standard of proof. He further relied upon the judgment of the Hon'ble Apex Court in S. Subramanian v. S. Ranrasamy8 on the aspect that though the family members were residing together and some loans might tqave been taken by the family, that itst [f could not be inferred that there was a blending of the suit properli:s into the joint famity properties. He further relied upon the judgment of the combined High Court of Telangana and Andhra Pradesh in Koppula Obanna u ltR u ozo sc tgtz ' 2024 (3) scc 523 '2019 (4) ALD 294 (sc) 25 DtGRR..I (:{:CA Nos )05 & ))B oI )019 (died) per LRs. v. Bheemunipadu Abraham (died) and othersebn the aspect that delivery ofpossession is no longer an essential ingredient to uphold validity of an immovable property and failure of the plaintiff to take possession would not invalidate the gift.

16. Basing on these contentions of both the leamed counsel for the appellants and respondent, the points that arise for consideration in these appeals are: I 2 3 4 5 Whether PW. I is competent to give evidence as Special Power of Attomey (for short "SPA") on behalf' of the plaintiffl Whether the suit schedule property was the self acquired property of the husband of the plaintiff or the property of the joint family Firm as claimed by the appellants- defendant Nos.l to 3? Whether the plaintiff is entitled to the reliefs as claimed by her? Whether the defendants are entitled to be declared as owners of the suit schedule propefty as prayed by them in thdir counter claim? Whether the judgment and decree passed by the trial court was in accordance with law and facts of the case or whether the same is liable to be set aside?

6. To what result? 'zora 1z; ll-o lo9 26 I)r (;RR,l ('( t .1No\ )0j,\ )l3of)01')

17. Point No.l: Whether PW. I is competent to give evir lence as Special Power of Attorney (for short "SPA") t:n behalf ol the plaintilll PW. I is the third son of the plaintiff by name Dr'vkishan Panwar He along with his elder brother Rajendra Kumar, wc:e given Special Power of Attorney by the plaintiff. Ex.Al is the SPA filed by the ptaintifL Ex.Al would disclose that the plaintill wirs a 66 year old woman, she was not well versed with the Court proceec ings and that she required assistance to do things. Her sons were also personalIy acquainted with the facts of the case, as such, gave Pou er ol Attomey to both of her sons Devkishan Parrwar and Rajendra Krtrnar to jointly or individualty do and execute any of the acts described t y her in the said document on hcr behalf. In the said acts, she also descr ibed in clause l- C to appear and depose on her behalf in any court of la ,v. The SPA was a notarized document signed by the executant in the presence of two witnesses before the notary on 12.11.2012. As such. PW.l, who was acquainted with the facts of the case, is permitted to deyrose on behalf of the plaintiff. 27 DTGPA_J ( ( CA Nas 20j & )28 oI)019

18. The contention of the leamed Senior Counsel for the appellants was that the ptaintiff had not entered into the witness box The Power of Attorney holder could not depose in place of the principal and relied upon the judgment of the Hon'ble Apex Court. in Vidhyadhar v. Manikrao and another (1 supra) and Janki Vashdeo Bhojwani and Another v. lndusind Bank Limited and Others (2 supra).

19. In Vidhyadhar v. Manikrao and another (l supra), the Hon'ble Apex Court laid down the principle that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him was no[ correct. But, as per the facts of said case: "18. Defendant No. I himself was not a party to the transaction of sale betweQn defendant No. 2 and the plaintiff. []e himself had no personal knowledge of the terms settled between defendant No. 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, defendant No. I have raised a plea as to the validity ol the sale dced on the ground of inadequacl, of consideration or part-payment thereof? Defendant No. 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity ofthe sale deed 2E IT GRII-J (:(:( 4 No\ 2at & 2ll af2Al9 ..) on the ground that it was without consideration r)r that the consideration paid to him was highly inadequate. But hc, as pointed out earlier, admitted the claim of the plaintiff whose clairn in the suit was based on the sale deed, cxecuted by defendant No. 2 in his favor. 'l'he propcrty having been transferred to him, the plairtiff hecame entitled to a[[ the reliefs which could have been claimed t y defendant No. 2 against defcndant No. I including redemption of th: mortgaged property.

22. . .. When thc present suit for redemption was filed by he ptaintiff, dcfendant No. 2. as pointed out above, admitted the r laim of the plaintitf by filing a one-sentence written statement that .he claim ol the plaintitT was admitted. When the plaintiff entered int( the witness box. dclendant No. 2 did not cross examine him. He did not put it to the plaintilf that the entire amount of consideration had n ct been paid by him, delendant No. 1 alonc raised the question of validity of the sale deed in lavor of the plaintiff by pleading that it \4'a i a fictitious transaction as thc sale consideration had not been paid o defendant No. 2 in its entircty. Having pleaded these facts and havi rg raised the question relating to the vatidity of the sale deed on the ground that the amount ol consideration had not been paid, defenda rt No. 2 did not, in support of his case, enter into the witness box Instead, he deputed his brother to appear as a witness in the case le did enter into the r.r,itness box but could not prove that the sale r onsideration had not bcen paid to delcndant No. 2.

20. On considering the above fact situation, t:re Hon'ble Apex Court hetd that where a party to the suit does not app(rar in the witness box and state his own case on oath and does not ofl-er himself to be cross-examined by the other side under Section 1 14 of the Indian 29 Dt GRll,l (:(:( A Nos 2Ai & l)E o/ )019 Evidence Act, 1872, a presumption would arise that the case set up by him was not correct 2l . But here, in the present case, the .son of the plaintiff was examined on behalf of the plaintiff and he was cross-examined at length by the defendants on all the aspects. As such, the proposition laid down by the Hon'ble Apex Court would not come in aid to the appellants.

22. In Janki Vashdeo Bhojwani and Another v. lndusind Bank Limited and Others (2 supra), the Hon'ble Apex Court while considering whethera power of attomey holder could depose on behalf of the principal, observed that: "Order III Rules I and 2 of CPC smpowers the holder of power of attomey to 'act' on behalf of the principal. I'he word 'acts' cmploycd in Order III Rules I and 2, confines only in respect of 'acts' done by the power of attomey holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. If the powcr of attorney holder has rendered some 'acts' in pursuance to powcr of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannol depose lor the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitlcd to be cross-examined." 30 I)r GRR J CCt:A Na\.2A5 & 228 of 20t9

23. In the present case, the attomey holders were authorized to depose on behalf of the principal. They were the sorrs of the plaintiff and have personal knowledge olall the facts stated by the plaintiffin her plaint. The plaintiff was an old aged woman, a marwarli lady, who was not acquainted with the court proceedings. As such, th: sons, who were majors and a-cquainted with the facts of the case, can d,:pose in place of the plaintiff.

24. As seen lrom the facts of the case also, nr ) acts were done by the principal except issuing a legal notice, all the ar:ts were done by her deceased husband, which the adult sons were a\/are of and can depose.

25. As such, this Court does not find an y merit in the contention of the leamed Senior Counsel for the appellants that PW. 1 could not depose in place ofor instead ofthe principal

26. Accordingly, Point No. I is answered holdrng that PW. I is competent to give evidence on behalf of the plaintiff as liPA holder

27. Point No.2: Whether the suit schedule properfy was the self acquired propengnf the husband of the plaintiff or the 3l Or cFlR,J C(:CA No!.lt)i & 228 o[2A19 { property of the joint family Firm as claimed by the appellants - defendants I to 3? The contention of the plaintiff was that the suit schedule property was the self-acquired property of her husband. As per her contention, the I Additionat Chief Judge, City Civil Court, Hyderabad, had executed the sale deed marked under Ex.A2 in favor ofher husband in pursuance of the decree passed in O.S.No.596 of l97l on his file. Ex.A2 - registered sale deed also would disclose that the purchaser Sri Balkishan Panwar, who was also an advocate by profession, had fited .the suit O.S.No.596 of 197 I against his seller Smt.Afsar Naseem Khatoon and Sri Harikishan, the subsequent purchaser from the original vendor for specific performance of agreement of sale dated 01 .08. 1971 in respecL of mulgies bearing Municipal Nos.15-7-389 and l5-7-390 situated at Begum Bazar, Hyderabad and the said suit was decreed in favor of the purchaser Sri Balkishan Panwar (the husband of the plaintiff), and a direction was given to the vendor to execute a sale deed in favor of the purchaser and to deliver vacant and peaceful possession of the property to the purchaser and the subsequent purchaser is also directed to join in the execution of the sale deed. As they failed to execute the sale deed, the sale deed was executed by the Court on their behalf, as per the )-: Dr(;PJi_J CCt A Nos.205 & )28 Df 2019 decree passed in O.S.No.596 of 1971. The defendants had not disputed the execution of the sale deed in favor of the husban<. of the ptaintiff. However, the claim of the defendants was that the prop,:rties covered by Ex.A2 were purchased by Balkishan Panwar on belralf of the joint family and / or Parlnership Firm. As such, the point ior consideration now is whether the properties purchased under Ex.A 2 were the self- acquired properties of the husband of the ptaintiff or parl of any joint family property or that ol the Partnership Firm, as claimed by defendants I to 3.

28. The contention of the delendants was tha- out of the total sale consideration of Rs.34,000/-, for which both the properties 15-7- 389 and l5-7-390 were purchased by the husband ofthe plaintifffrom Smt.Afsar Naseem Khatoon, Rs.6,000/- was paid by Sri Balkishan Panwar out of his own earnings and the balance of Rs.i 8,000/- was paid by him by withdrawing the said amount from the Paltnership Firm of Chunnilal Ganga Bishan Panwar and Sri Balkishan Panwar himself admitted the same before the Income Tax authorit es in the letter addressed by him to the Income Tax Departmen t tn respect of acquisition of the said property and relied upon Ex.B3 letter addressed t3 Dr GRRJ (:CCA No! 2Aj & )2/iol2t)19 by Sri Balkishan Panwar to the Assistant Commissioner of Income Tax, dated 12.06.1979.

29. In Ex.B3 letter, Sri Balkishan .Panwar stated that the property bearing Municipal Nos.15-7-389 & l5-7-390 situated at Begum Bazar, Hyderabad was owned by Smt.Afsar Naseem Khatoon and she agreed to sell the said properties to him for a consideration of Rs.34,0001 and an agreement of sale dated 01.08.1971 was executed by Smt.Afsar Naseem Khatoon in his favor. But, subsequently, she sold one of the two mulgies bearing Municipal No.l5-7-389 to one Harikishan, S/o.ShivNarayan contrary to the terms of the agreement of sale and refused to sell the said property to him. As such, he filed a civil suit vide O.S.No.596 of 197 I on the file of the leamed I Additional Chief Judge, City Civil Court, Hyderabad against both Smt.Afsar Naseem Khatoon and Harikishan lor specific performance of agreement of sale. The suit after hot contest was decreed in his favor on

23.08.t916

30. He further stated about the appeals filed against the said suit by Smt.Afsar Naseem Kl.ratoon and Harikishan, Letter Patent Appeals against the judgment in C.C.C.A.No.154 of 1976 and the SLPs filed before the Hon'bie Apex Court and about the dismissal of the -.14 D (;IA,J ('( \') lio\ 205.1 228 ol )019 same, the EP filed by him for execution ol the decrec as they failed to obey the decree and in the IIP also, the matter had gone up to the Hon'ble Apex Court 3l. With regard to the consideration aspect, wlrich was material to decide this issue, he stated that "Out of the sale r:onsideration of Rs.34,000/-, Rs.6,000i- was paid to Smt.Afsar Naseem Khatoon on

01.08.1971 in cash on the date of agreement itself. Later on, I was directed to deposit the balance sale consideration of Rs.28'000/- in Court under the decree, which I did. The amoun t of Rs.28,000/- was withdrawn by me from Firm of M/s.Chunnilal Ganga Bishan Panwar, Begum Bazar, Hyderabad, in which I am a sleeping partner and deposited the same in Court. The amortnt of Rs.6'000/- paid earlier at the time of agreement' was my ea rnings from my profession."

32. The ptaintiff admitted in her rejoinder tt at Sri Balkishan Panwar was a sleeping partner in M/s.Chunnilal Gangt Bishan Panwar Firm, but denied that he prosecuted the legal proceedings on behalf of the joint farnily. 35 CCCA Nos 20j & )28 oI)019

33. In the light of the above contentions, when the recit'rls of Ex.A2 were seen, they would not disclose that Sri Balkishan Panwar admitted' about purchase of the suit property on behalf of any joint family. The agreement of sale was executed by him in his individual capacity and the suit O.S.No.596 of l97l was also filed by him in his individual capacity. The sale deed was also executed in the name of Balkishan Panwar in his individual capacity, but not in the name of any Firm. The various appeals filed against the judgment and decree in O.S.No.596 of 1971 and E'P.No. l6 ol 1978 in the said suit would also show rhar Batkishan Panwar fought the titigation in his individuat capacity for more than a decade and went up to the Hon'ble Apex Court twice. No evidence was produced by the defendants I to 3 to show that they have contributed any expenses for the said litigation'

34. The defendant No.l examined as DW.1 also admitted in his cross-examination that late Balkishan Panwar filed o.s.No.596 0f l97l on the file of the learned I Additional Chief Judge, City Civil Court, Hyderabad for specific performance against Smt.Afsar Naseem Khatoon and another in his individual capacity. The said admission made by DW.1 himsetf would prove that the suit property was the self-acquired property of Balkishan Panwar. No document was filed bY the 36 DtCRRJ a C( .1 .\a\ 20j & 228 a[2019 defendants to show that the suit property was claimed as an asset of the Firm in any of the Income Tax Retums filed by the Firm' DW'l admitted that he was a Chartered Accountant by p -ofession. He admitted in his cross-examination that "M,/s.Chunnilal Ganga Bishan Panwar Firm" was constituted 80 years back. One Sri l{amlal Panwar, the father of Balkishan Panwar and Sri Ganga Bisharr, the lather of defendants I and 2, were partners at the time of constitution olthe Firm' After that, he along with Balkishan Panwar joined the Firm as partners, but stated that he did not know in which year, they joinld the Firm He stated that there was no Managing Paftner, but the Fimr was registered, but he could not say in which year it was registered. I le stated that he was not having the partnership deed or did not know w rere it was' He further stated that the Firm was existing till 1989 titl Ramlalji was alive and after his demise, the Firm was dissolved' He also ;tated that there was no written'deed of dissolution of Firm' He admitt::d that Ramlalji was an individual Income Tax assessee. He was also an individual Income Tax assessee for the past 25 years. Though, he was a Chartered Accountant by profession since 38 years, and stated that he was a partner of the Firm, admitted that he never looked after the accounts of ---\, 37 DtGRR.J CCCA No! )0t & )28 af)419 the Firm and did not have the records of the said Firm. He stated that he did not know whether his brothers were Income Tax assessees or not.

35. Thus, his evidence would disclose that though he was a Chartered Accountant by profession since more than 38 years and stated that he was a paftner of the said Firm ol M/s.Chunnilal Ganga Bishan Panwar but he never looked after the accounts of the Firm and was not in possession of the partnership deed or the deed of its dissolution or any records of the said Firm. He could not say rvho was the Managing Paftner of the Firm or the shares ofeach pa(ners, what was the business of the Firm, its assets and liabilities or any Income Tax Returns were filed by the Firm

36. Though the defendants I to 3 stated tn their written statement / counter claim that the Firm had reimbursed the sum of Rs.6,000/- to Balkishan Panwar, no document was filed by them to show that they have reimbursed the said amount. No documents were filed by them to show that the suit schedule propefty and its neighboring mulgi were the properties of the Firm. The reply given by the Balkishan Panwar to the Income Tax Authorities marked under Ex.B3 also would disclose that he purchased the property in his individual capacity, but not for or on behalf of the Firm. The withdrawal of Rs.28,000/- from 38 Dt ARR.J ( ( t .4.\o\ l0i,l )21 ol )019 the Firm by one of the sleeping partners of the Firm wc uld not make the property purchased with the said money to be considered as property ol the Firm. No presumption can be drawn that the consirleration was paid on behalf of the Finn, parlicularly when DW. I categor cally admitted in his cross-examination that the suit property was not the property of the Firm. DW. I admitted in his cross-examination that :he name of late Balkishan Panwar continued in the municipal recor ds for both the premises till his demise and subsequently in the namc of the plaintiff. Exs.A6 to A8 receipts would disclose that the municipaltax wad paid by Balkishan Panwar and after his death, by the ptaintilf At no point of time since the purchase of property under Ex.A2 in tl e year 1976, the defendants ever declared it as part of any joint family property or that of the Finn. They have not declared it as an asset or prol,ert)' of the Firm. Ex.B3 would not disclose that the property was purchirsed on behalf of the joint family or Firm. 37 . Even with regard to the contention of the delendants with regard to the joint family, the father of Balkishan I'anwar by name Ramlal Panwar and the father of DWs.1 and 2 by nanre Ganga Bishan Panwar, were brothers. But no evidence was adduced o show that they resided together or did any business i,. -ommon 39 DIGRR.J CCCA Nt6 20i & 228 oI20l9

38. The defendant No.2 is the own brother of defendant N6. 1. On his death, the defendants 5 to 7 were impleaded as his legal heirs. DW. 1 in his cross-examination stated that defendant No.2 was his younger brother and the defendant No.3 was his son. The defendants 5 to 7 were the legal heirs of the deceased defendant No.2, but stated that he did not know whether the defendant No.2 died testate or intestate He stated that they were four brothers and two sisters namely Babulal Panwar, Surajmal Panwar (defendant No. I ), Bhagirath Panwar (defendant No.2) and Bhagwandas Panwar, Ramkumari Bai and Rajkumari Bai. His eldest brother Babulal Panwar expired in the year 1987 at Hyderabad. His youngest brother Bhagwandas Panwar was residing in Rajasthan for the past 7 to 8 years. [Ie did not know the age of his younger brother. All the brothers were living separately after demise of their father. He did not know the source of income of his brother Bhagwandas Panwar. His eldest brother Babulal Panwar had his own business, but he could not give the details of the same. He stated that he did not know what the second defendant was doing. He was not aware of his activities including the source of his income. The defendant No.2 was residing at Shahniyat Gunj in a rented house. He was residing at Chudi Bazar in his self-acquired property. He stated that 40 Ot (;RR.J ( (:(.,1 l\os )t)i 1l ))\ o[201, his father and all the four brothers constituted a joint 1'amily. The said joint famity was still in existence, but the joint famill has no business concerrr. The ioint family was not an Income Tax assessee'

39. Thus, the evidence of DW' I would disclo ;e that lre and his own brothers themselves were residing separately at di ferent places and were doing separate businesses. One of his brotherl was residing in RajasthanandtheotheronethoughresidinginHyderal;adi.e.defendant No.2, he was not aware of the businesses of his brothers or their source of income. His evidence is not useful to believe that the|e was a joint family existing between his father and his elder paterrral uncle and that they did any business in common or that the joint fami y was having any income and that with the nucleus of the said income, the suit schedule propefty and its neighboring mulgi were purchased'

40. Leamed Senior Counsel for the appellanis relied upon the judgment of the Hon'ble Apex Court in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Others (3 supra) on the aspect that there was no presumption that a pr')pefty standing in the name of a member of joint family was a Jornt Hindu Family property, but on the evidence if it was established that the propedy was Joint Hindu Famity Property tstrd:the other properties were acquired out 4t DTGRRJ C(:(A i\ios )05 & 22E of2019 of that nucleus, if the said initial burden was discharged by the person, who claims Joint Hindu Family, then the burden would shift to the party atleging Self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family properry by adducing cogent and necessary evidence.

41. But in the present case, the defendants failed to prove that the Joint Hindu Family was in existence and the Joint Hindu Family was having any properties and from out of the nucleus of the said properlies, the suit schedule property was purchased.

42. In Surendra Kumar v. Phoolchand (Dead) through LRs. And anotherro, the Hon'ble Apex Court held that: "[t is no doubt true that there is no presumption that a famill, because it is joint possessed joint property and therefore the person alleging the property to be joint, has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish alfirmatively that the property was acquired without the aid of the joint family." 'o ltll6y z scn rslsc; { 42 1t (iRR--l (:C(:A nos )t)i & 2)8 ot )alt)

43. Thus, there is no presumption that even though a family was living in joint, the property possessed by each individual member is a joint famity property. The burden lies -upon thr: person, who claims that it was a joint famity property, to prove that the joint family possessed joint property, which would form sulficient nucleus lrom which the propefty in question may have beer acquired. But the delendants failed to prove about the existence of a joint family or that the joint family was having any property and with the said nucleus, the suit schedule property was purchased by the husband of the plaintiff - Balkishan Panwar.

44. The other contention of defendants 1 o 3 was that after the death of Ramlal Panwar in 1989 and Ganga Bisnan Panwar in 1991, there was a family arrangement between Sri Balkishan Panwar on one side and sons of Sri Ganga Bishan Panwar i.e. defendants I and 2 and Sri Baghwandas Panwar, the other sons of late Sri Ganga Bishan Panwar on the other side and in pursuance of the said arrangement, mulgi bearing No.15-7-389 fell to the share of late Sri Balkishan Panwar and mulgi bearing No.l5-7-390 fell to the shar: of sons of late Sri Ganga Bishan Panwar i.e. defendants l and 2 and Sri Bhagwandas Panwar. But, to prove the said contentigt1, no evi<Lence was adduced by 43 DI GRR,J ('C( A No! 20i ,1 2)8 of2019 the defendants to show that there was any family arrangement. Whether the said arrangement was oral or in writing also was not stated by the defendants'. If it was an oral arrangement, before whom it was made, when it was made and what were the other properties that w.ere distributed between the parties in the said family arrangement, was not stated by defendants I to 3.

45. As per Section 17 of the Indian Registration Act, 1908, any transfer of immovable property can be affected only by a registered document. Admittedly, no such document was filed by the defendants

46. On the other hand, the plaintiff had filed Ex.A2l , an agreement dated 04.03. 1 992 executed between D I , D2 and his other brother Bhagwandas Panwar, wherein they stated that late Sri Ganga B ishan Panwar, their father, was carrying on business under the name and style of M/s.Chunnilal Ganga Bishan Panwar in the premises bearing No. 15-7-390 situated at Begum Bazar, Hyderabad (the suit schedule property herein) along with the second and third parties i.e. defendant No.2 and Bhagwandas Panwar. The second pafty stafted business in wholesale in wheat products in the rear portion bearing Municipal No. l5-7-390ll under the name and style of M/s.Bhagirath Bhagawandas Panwar. Sri Ganga Bishan Panwar died on 09.04.1991 44 D/(iRR-.1 CCCA No\ 20j & 228aJ 2t)19 After the death of Sri Ganga Bishan Panwar, on verifica.ion of accounts, as it was found that both the Firms were indebted to',arious creditors and sustained losses in the businesses, they.enterec into a mutual agreement to separate their businesses without any inte rference of edch other. In the said agreement at clause No.8, they admit:ed that "late Sri Ganga Bishanji was carrying on business in the mulgies along with second and third parties therein as tenant till his death. Now, in future, if the mulgies are purchased from their owner one Balkishan Panwar either out of the joint funds of the parties therein or by the lunds of any one or two of the parties therein under the above agreenrent. the mulgies would be the joint properlies of all the three parties t herein and their mother Smt.Narayani Bai and the widow of their deceased elder brother Sri Babulal Panr.var.

47. Thus, they admitted in the said agreement that Balkishan Panwar, the husband of the plaintiff was the owner of tlre mulgi bearing No. I 5-7-390 and Late Sri Ganga Bishan Panwar v 'as carrying on business in the said mulgi along with his two sons a; tenants and in future if the mulgies were purchased from the owner out of the joint funds of the parlies therein, it would be the joint propert y of all the three brothers along with their mother and widow of thej r elder brother. 45 Dt<;lU{..J CCCA Nos 20j & )2t1oJ 2Al9 When the defendants I to 3 were admitting the suit schedule property as the individual property of Balkishan Panwar and recognizing him as owner, their contention that it was a joint family property or the property of the Firm, would not hold any merit. This document marked under F.x.A27 when confronted to DW. I during his cross-examination, he admitted the same and its contents in his deposition on28.04.2016.

48. The other aspect stated by the plaintiff was that during his lifetime, the husband of the plaintiff had given the two properties 15-7- 389 and 15-7-390 situated at Begum Bazar, Hyderabad, as collateral security and guarantee for the loan obtained by defendant No.3 and as the defendant No.3 failed to discharge the said loan taken lrom M/s.Vijaya Bank, Bank Street, Hyderabad, the bank had filed a suit vide O.S.No. l39l of 1993 and the said loan was discharged by the husband ofthe plaintiff and got released the property.from the mortgage.

49. The plaintiff got marked Ex.A20, the certihed copy of the judgment in O.S.No.i39l of 1993 delivered by the leamed VII Senior Civil Judge, City Civil Court, Hyderabad. Though the defendant No.3, shown as defendant No. I in the said suit filed a written statement, the defendant No.3 never claime&that the morlgaged property therein was a joint family propefty or it was the property of the Firm. The husband of 46 DTGRRJ ( ( (-.,1tia\ 205 & D8 of2019 the plaintiff shown as defendant No.2 therein also harl not mortgaged the said property on behalf of any Firm. The same v'uould also prove that the suit property was the self-acquired pr-o.perty o I the husband of the plaintiff and he had given it as a security for the oan obtained by defendant No.3, the son ol defendant No.1, Kamal Kish:re Panwar'

50. F-urther, the defendants 1 to 3 had filed E>'s.B8 to B10, the proceedings initiated by them in the State of Rajasthan for partition of the joint family properties. However, the suit propert" was not part of the said proceedings. Admittedly, the said proceedinErs were instituted during the pendency of the present suit before the trial court. The same would also disclose that the suit properly was the self-iLcquired propefty of the husband of the ptaintiff. Ilall it was a joint fanily property, the defendants 1 to 3 would have claimed partition of the srrid properly also' They had not.stated about any settlement between the joint family with regard to the said property also in the said suit. As such, the defendants failed to prove that the suit schedule property wa; a joint family property or that it was propefty of the Partnership Firrn, as claimed by them. 47 bGRRJ CCCA Nos )05 & 2)8 ol20lt) 5l. Point No.3: Whether the plaintiff is entitled to the reliefs as claimed by her? As the suit is filed by the plaintiff claiming the relief . of declaration of title and recovery ofpossession along with past and future mesne profits and able to establish that the suit schedule propefiy was the self-acquired property ofher husband, she is entitled to the reliefs, as claimed bv her.

52. Point No.4: Whether the defendants are entitled to be declared as owners of the suit schedule property as prayed by them in their cou nter claim? As the defendants also filed a counter claim seeking declaration that they were owners of the suit schedule property by raising a contention that the same was purchased out of the joint family funds or by the Partnership Firm and failed to prove the same by adducing cogent and reliable evidence, they are not entitled to be declared as owners of the suit schedule property, as prayed by them in their counter claim. They have also notjoined their other brother Bhagwandas Panwar along with them in the counter claim. They have filed two written statements *;v 48 Dr(;RRJ (CC} lo! 2l)t & 2)E o[201, They have filed the first written statement seeking ,.he relief declaring the defendants I and 2 along with their brother liri Bhagawan Das Panwar, as owners of the suit schedule property bear'ng rnulgi No. l5-7- 390 at Begum Bazar, Hyderabad, but in the seconrl written statement filed by them, they have asked only for the relief to d':clare defendants 1 and 2 alone as absolute owners of the suit schedul: property bearing mulgi No.15-7-390 situated at Begum Bazar, I-lyderabad. These different prayers would disclose that they were not certain as to who were entitled to be declared as owners of the propertl,

53. As the first written statement also inc luded the counter claim, the second written statement - cum - couuter claim was not maintainable. As Sri Bhagwandas Panwar was not I party to the suit, the declaration sought on his behalf also is not mainri,inable. In view of the discussion made in point No.2, as the defendants r'ailed to prove that the suit schedule property was purchased out of the j<,int famity nucleus or by the Partnership Firm, they are not entitled to be ,leclared as owners of the suit schedule property, as prayed by them in their counter claim.

54. As per the judgment of the Hon'ble Apr:x Court in Maria Margarida Sequeira Fernandes and Others v. l0rasmo Jack De Dt ('RR_J (.CCA Nos )05 & )28 of20t9 Sequeira (Dead) through LRs. rr also wherever pleadings and documents establish title to a particular property and possession iS in question, it will be for the person in possession to give suffrciently detailed pleadings, particulars and documents to support his claim in order to continue in possession. 'lhe person averring a right to continue in possession shall, as far as possible, give detailed particulars and specific pleadings along with documents to support his claim to establish his possession

55. The plaintiff had produced Ex.A2 in proof of the title of her husband and filed Ex.A3, the gift deeds executed by her sons in her favor to show that she was the absolute owner of the suit schedule property. The defendants I to 4, who were in possession of the suit schedule property, lailed to establish their title and their right to be continued in possession- They never disputed the claim of the plaintiff when she got mutated the property in her name after the demise of her husband or that.they never made any efforts to get the property mutated in their name to prove their claim that the property fell to their share aftcr the family settlement. " zotz 1sy scc lzo I I

56. In view of the same, the defendants were tot entitled to the relief of counter claim, as clairned by them. t 1 a 1 \'.\ :ti ,t :)\ ol 20t9

57. Point No.5: Whether the judgment and decree passed by the trial court was in accordance with law and i-acts of the case or whether the same is liable to be set as idc? This Court does not find any illegality or infirmity in the judgment of the trial court to set aside the same. r re trial court on considering the evidence of the witnesses and the docrurents in detail. passed a reasoned order, as such, the same is liable to bt confirmed.

58. Point No.6: To what result? In the result both the CCCAs are disrnisscd confirming the judgment dated28.02.2019 passed in O.S.No.54 I of l0( g b_y the leamed IV Additional Chief Judge, City Civil Court, Flyderabad, No order as ro As a sequel, rniscellaneous applications pending in these appeals, ifany, shall stand closed. -iol- //TRUE COPY// M. F.AMANA KRISHNA '/ rlOlNT REGISTRAR / \_ -_.:=._= IJECTION OFFICER To,

1. The XIV Additional Chief Judge' City Civil Court at Hydere'bad (with records) ) onecc to Sri Saroar.ras'bllrtinjn' nO'o""te [oPUCl 6 5',i" 6c i. s'i G Arun' Advocate [oPUCl 4. Two CD CoPies prp/gh t S_ !-t!. k& \ HIGH COURT DATED:1110412025 (2 drafts) 5T.ATE 1 e a I o .t6 * 1t IuNl6 o i ;rsp$ COMMON JUDGMENT CCCA.Nos.2OS and 228 ot 2019 DISMISSING BOTH THE APPEALS. WITHOUT COSTS. r R\ \ 4 @ o IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HoNouRABLE DR. JuslcE c.iraoua narut CITY CIVIL COURT APPEAL NOS: 205 AND 228 OF 2019 CIry Clv|L COURT APPEAL NO: 205 OF 2019: Between:

1. Surajmal Panwar, S/o Gangabishanpanwar, Aged about 55 years, Occ. Business, R/o 4-6-260, Chudi Bazar, Hyderabad 2. Sri Bhagirath Panwar, died per LRs Appellants 5 to 7 3. Sri Kamal Panwar, S/o Surajmal Panwar,Aged about 40 years, Occ: Business, R/o. Shop no. 15-7-390, Begum Bazar, Hyderabad 4. Sri Bajrang Tiwari, S/o Late Pratap Tiwari,(Died as per LRs g to .10) 5. Kalavathi Bai, Wo Late BhagirathPanwar, Aged about 50 years, Occ. Housewife

6. Chetan Panwar, S/o Late Sri BhagirathPanwar, Aged about 30 years, Occ. Private Service, App no. 5 and 6 are R/o. 14-1,1-1113/1 , Multanpura, LambiGalliShahinayatgunj, Hyderabad 7. Archana @ Pinki, Wo VikasKachwaha D/o Bhagirathpanwar, Aged about 2g years, Occ. Housewife Rlo 18040472, Shamsheergunj, Hyderabad B. Puranmal Tiwari, S/o. Late Bajranga Tiwari, Aged about 50 years, Occ: Business, Rlo. 14-3-143, Goshamahal, Arya Samaj, Nampally, Hyderabad 9. Balakrishna Tiwari, S/o. Late Bajrang Tiwari, Aged about 47 years, Occ: Business, Rlo. 14-2-226, Ghode Ki Khabar Shahinayaat Gunj, Nampally, Hyderabad. 'l0.Sriram Tiwari,.S/o. Late Bajrang Tiwari, Aged about 39 years, Occ:Business, Rlo. 14-2-226, Ghode Ki Khabar Shahinayaat Gunj, Nampaily, Hyderabad (Petitioners No.8 to 10 are brought on record as per Court Order dated 04.04.2024 in LA.No.3 of 2024 in CCCA No.205 of 2019) ANO ...APPELLANTS Smt Shiv PyarioBai, Wo Late Sri Balkishan Panwar, Aged about 62 years, Occ Housewife Rl o 1 4-5-31 41 3/1 6, Shahinayathgunj, Begum Bazar, Hyderabad ...RESPONDENT/PLAINTIFF Appeal filed under Section 96 of C.P.C. against the judgment and decree daled 28.02.2019 passed in O.S. No. 541 of 2008 on the file of the court of the XIV Additional Chief Judge, City Civil Court at Hyderabad. CITY CIVIL C OURT APPEAL NO: 228 oF 2019 Between: Housewife 55 years, Occ 40 years, Occ

1. Surajmal Panwar, S/o Gangabishanpanwar, Aoed about -- ^ Business, R/o 4-6-260. Cnuoi eaz;i, HyOeraOaA 2 Sri Bhagirath panwar, died per LR; hrp;la;is e to 7 3. Sri Kamat panwar, Slo Surajmal 'Fun*riAg"O ,Oort . Py1n9.., Rio Shop no. 15_7_39'0, e"gm Arrri] Hyderatrad 4. Sri Bajrang Tiwari, S/o Lare pratap i#rii,tO[Jm per LFs B to 10) 5. Kalavathi Bai, Wo Late Bhagirathprn*"r, 50 years, Occ 6, Chetan Panwar, S/o Late Sri Bhagirathpanwar, Aged aoout 30 years, Occ. il;]i;nprr", 7. Archana @ pinki, WoViiaskachwaha D/o Bhagirathpanwar, Aged about 28 years, Occ. Housewife Rto 1g040472, Shamsheergunl, Hyderabad B. Puranmal Tiwari, S/o_^ Late Bajrang-a ii*"ri, ng.O about 50 years, Occ: Business, Rlo 14-3_143, Coshamatrit, nrya Srmrl, Nampally, Hy6;;;j 9. Balakrishna Tiwari,^S/o Late Bajrang fi**, ng"O ,tj,ri'+Z,V"ri;:b"", Business, No 14-2_226, Ghode Ki if,"ori Sr,Jninrvr,ri-crnl]"rirrp",,v, private service, App no. s ando are ilo. u-r.ilii, LambiGalliShahinayatgunj, Hyderabad -ng; "O, Hyderabad.

10. Sriram Tiwari, S/o. lrl9. B-?jrgrg Rto. 14-2-226, Ghode Ki Khabai ShahinayiiiCun;, ru".i,,,rr,,,HVi"Iiri. (Petitioners No.8 to - --. --, 04 04.2024 in t.A No.3 of 2024 in CtCR No.zbi or zois) _Tiwari, Aged about 39 ye,ars, Occ:Business, ^10- ?1"- brought on'iu"orO as per Sourt Order dated AND ...APPELLANTS Smt Shiv PyarioBai, Wo Late Sri Balkishan panwar, Aged about 62 years, Occ. Housewife Rt o 1 4 -5_3 1 4t3l1 6, Shahinayatt Su"i, B;i,r, Bazar, Hyderabad ...RESPON DENT/PLAI NTIFF Appeal filed under Section 96 of C.p.C. against the judgment and decree d.a.red 28022019 passed in^o.S- No. sar oiioo"ion the fire of the court of the XIV Additionat Chief Judge, City Civit Cou.t ,i n-VJJrrO"O. These appeals coming on-for.hearing and upon perusing the grounds of appeal, the Judgment and Decree of the c-ourt b"il ;;; the mater ar papers in the appeal and upon hearino the arguments of sri A.trrrhuresni ne,xeJe,iti.g i;,. bri Sardar Jasbeer Singh, AOvocate for the Appellani.'i, ootf, app,:als and of Sri G. Arun, Advocate for the Respondent in Ootn'[ppeais] " This Court doth Order and Decree as follows: 1 That the Ctty Civil Court Appeals be and hereby are dismissed confirming the judgment dared2g02.201g passed in o.S.No.541 0f 2008 by the rearned IV Additionat Chief Judge, City Civil Court, Hyderabad; and 2. That there shall be no order as to costs in these appeals. SD/- M. RAMANA KRISHNA OINT REGISTRAR //TRUE COPY// To, ECTION OFFICER '1 . The XrV Additionar chief Judge, city civir court at Hyderabad. (with records) 2. Two CD Copies {u- HIGH COURT DATED:1110412025 (2 drafts) COMMON JU DGMENT+DECREE CCCA.Nos.20S and 228 of 2019 DISMISSING BOTH THE APPEALS. WITHOUT COSTS. ?n- a (