Kushal Rao v. Shyam Rao

Judgment

The judgment and decree in O.S. No.6 of 1986 on the file of the Subordinate Judge’s Court at Bodhan dated 20-12-1993 decreeing the suit with costs in favour of the plaintiff, led the unsuccessful defendants to file the appeal. The facts leading to the appeal are that the plaintiff filed the suit claiming that he purchased Ac.7.37 guntas of dry land in S.No. 155 of Shakerga (Big) village, Madnoor Taluk under a registered sale deed dated 13-05-1963 for Rs.7,132-50 ps. and also purchased Ac.6.00 of dry land in S.No.164 of the same village under a registered sale deed dated 23-10-1967 for Rs.9,000/-. He is in physical possession since then, getting his name mutated and paying land revenue. The 1st defendant initiated proceedings before Tahsildar, Madnoor for correction of entry in Column No.16 in his favour in proceedings No.A1/855/79 dated 03-02-1979, for which the plaintiff submitted his objection petition dated 08-02-

1979. The Tahsildar, Madnoor in his judgment dated 27-06-1980 advised the plaintiff and the 1st defendant to approach competent civil Court for establishing their rights, as he could not come to any conclusion in the local enquiry as to who cultivated the suit lands. Defendants 1 and 2, the natural brothers of the plaintiff, illegally interfered with the plaintiff’s possession of the suit lands on 30-08-1980, which was resisted by the plaintiff. But the defendants ultimately succeeded in dispossessing the plaintiff in the 2nd week of October, 1984 when the plaintiff was absent from the village due to hospitalization of his wife at Nanded for about a month. Hence, the suit originally filed for a permanent injunction in respect of Ac.7.37 guntas and Ac.6.00 of the plaint schedule, was amended into one for declaration of the plaintiff’s title to the same and recovery of possession of Ac.5.11 guntas and Ac.4.00 of the plaint B schedule, future mesne profits from 1984-85 and costs. The defendants resisted the suit contending that the two items of plaint schedule were purchased by Parbhat Rao, father of the parties, with joint family funds and out of love and affection he got the sale deeds executed in the name of the plaintiff. The purchase was for the benefit of the joint family consisting of Parbhat Rao and the parties. During the lifetime of the father, a family settlement by way of partition of ancestral and joint family properties including the suit lands, took place in June, 1968 and since then the parties are in possession and enjoyment of their respective shares including the suit properties. The 1st defendant got Ac.2.25 guntas and the 2nd defendant and the plaintiff got Ac.2.26 guntas each in S.No.155, while each of the parties got Ac.2.00 in S.No.164. No document was executed for the actual partition by metes and bounds, but at the insistence of the mother of the 2nd defendant, the second wife of Parbhat Rao, for a document of settlement in view of the minority of the 2nd defendant, a document of settlement by way of partition was executed by Parbhat Rao and signed by him and the parties on 05-06-1968, the 2nd defendant being minor represented by his mother Bhoomavva. The document was attested by the uncle of the parties Shivraiah and other close relations and the document also speaks about the lands retained by the parents for their maintenance. The 1st defendant filed an application before the Tahsildar, Madnoor in February, 1979 to incorporate his name in the Pahani Patrika regarding his share in S.Nos.155 and 164 and the Revenue Inspector after enquiry and investigation submitted his report to the Tahsildar on 07-02-1979 along with a copy of panchanama and sketch. The 2nd defendant also filed a similar application on 7-05-1979 along with copy of settlement deed dated 05-06-1968, the original being with his mother. The Tahsildar, Madnoor instead of acting upon the report of the Revenue Inspector and the other evidence, surprisingly referred the parties to the civil Court. The plaintiff did not file the suit originally for declaration and possession and amended the suit, alleging dispossession in October, 1984. When he was out of possession at the time of institution of the suit in 1980 and omitted to seek the relief of possession, the amended relief is barred by Order II Rule 2 of the Code of Civil Procedure. Alternatively, the possession and enjoyment of defendants 1 and 2 of their respective shares openly and continuously to the knowledge of the plaintiff perfected their rights of ownership by adverse possession for more than 12 years prior to the suit. The suit is barred by limitation and the Revenue Divisional Officer, Bodhan allowed the application by defendants 1 and 2 against the orders of the Tahsildar, Madnoor and remanded the matter for fresh disposal. The suit land had a market value of Rs.9,000/- per acre on the date of amendment of the plaint and the plaintiff paid less Court fee by adopting the value shown as Rs.63,625/- in 1980. The plaintiff has no cause of action and hence, the suit be dismissed with costs. On such pleadings, the trial Court framed the following issues for trial.

1. Whether the plaintiff is entitled for decree of declaration of title of the suit lands ?

2. Whether the plaintiff is entitled for recovery of possession of schedule ‘B’ lands ?

3. Whether the plaintiff is entitled for future mesne profits till delivery of possession over ‘B’ schedule ?

4. To what relief ? A joint memo was filed by both parties to treat the evidence recorded in District Munsif Courts at Yellareddy and Madnoor as evidence in the suit and the evidence recorded in O.S. No.6 of 1986 may be treated as continuation of the evidence already recorded. The memo is allowed on 14-09-1988. P.Ws.1 to 7 and D.Ws.1 to 9 were examined and Exs.A.1 to A.20 and B.1 to B.25 were marked during trial. In the impugned judgment, the trial Court noted that O.S.No.59 of 1980 on the file of District Munsif’s Court Yellareddy for a perpetual injunction was transferred to the District Munsif’s Court, Madnoor on its formation, and the renumbered suit O.S. No.3 of 1982 was dismissed on 05-11-1982. A.S. No.18 of 1984 by the plaintiff before the Subordinate Judge’s Court, Bodhan resulted in remanding back the suit to the trial Court after the plaintiff amended the plaint seeking reliefs of declaration of title and recovery of possession. As the District Munsif’s Court, Madnoor lost its pecuniary jurisdiction after amendment, it ordered return of the plaint for presentation to proper Court, on which the suit was registered as O.S. No.6 of 1986 on the file of Subordinate Judge’s Court, Bodhan. The trial Court concluded that the evidence of P.Ws.1, 4 and 7 proved that with permission from revenue authorities for sale, the plaintiff alone purchased the land in S.No.155 by paying consideration to the vendor and the evidence of D.W.9, the scribe of Ex.A.1 sale deed, to the contrary, cannot be relied on. The trial Court also held that the purchase of land in S.No.164 under Ex.A.2 was also proved by P.Ws.1 and 5 to be between the plaintiff alone and the vendor for consideration of Rs.6,500/- paid as advance and Rs.2,500/- paid under Ex.A.2 by the plaintiff. The evidence of D.W.4, the vendor under Ex.A.2, was held to be not preferable in the light of the evidence of P.Ws.1 and 5 and Exs.A.2 and A.16. The trial Court also referred to Exs.A.3 to A.12 pahanies from 1967-68 to 1979-80 showing the plaintiff as pattedar and possessor and considered Ex.A.15 statement by the 2nd defendant about the absence of any document of partition as cutting at the root of Ex.B.1 and the evidence of D.W.1, the senior paternal uncle of the parties, and D.W.6, the scribe of Ex.B.1. After referring to Exs.B.13 and B.14 panchanamas and the evidence of D.W.5, the attesting witness to Ex.B.14, the trial Court noted that in Ex.A.13 order, the Tahsildar could not come to any conclusion while noting the absence of any partition deed. The non-filing of Ex.B.1 before the Tahsildar led, under the circumstances, to the trial Court holding Ex.B.1 to be not proved to be true and correct. While considering the evidence of P.Ws.3 and 6, the adjacent land owners, to be not helpful, the trial Court considered Exs.B.2 to B.12 land revenue receipts and Exs.B.15 to B.25 certified copies of pahanies also to be not helpful, while it also noted that Exs.B.15 to B.25 show the father of the parties as the pattedar and possessor in contrast with Exs.A.3 to A.12 showing the plaintiff as the pattedar and possessor. Preferring the evidence of the plaintiff and considering any presumption under Hindu law to have been rebutted by such evidence, the trial Court held the plaintiff to be entitled for declaration of title. As the possession and enjoyment of the defendants under Ex.B.1 was disbelieved and as Exs.B.13 and B.14 panchanamas were in 1979 and 1980, it was considered that the land revenue receipts commencing from 29-01-1975, the absence of clarity in the evidence of witnesses for the defendants as to since when the defendants are in possession and other circumstances, show that the suit was not barred for recovery of possession though it appeared from the evidence on record that the possession was taken by defendants 1 and 2 some years prior to the suit, but not as contended by the plaintiff. Though the trial Court observed that the plaintiff did not come to the Court with clean hands showing correctly when he lost possession, it found the plaintiff to be entitled to recovery of possession and also to future mesne profits to be ascertained in separate proceedings. Consequently, the trial Court decreed the suit as prayed for. The aggrieved defendants contended in the appeal that the heavy burden of proof on the plaintiff to establish the property to be his individual property overriding the presumption in favour of the defendants, was ignored. The partition and consequential possession of the sharers evidenced by Ex.B.1 were verified by the revenue authorities as seen from their reports, panchanamas and sketches. The separate payment of land revenue was not appreciated and any recovery of possession was barred by time and also by Order II Rule 2 of the Code of Civil Procedure, as the relief not claimed in O.S. No.3 of 1982 cannot be claimed in O.S. No.6 of 1986. The obtaining of Exs.A.1 and A.2 in May, 1963 and October, 1967 in the plaintiff’s name as the eldest of the brothers, while the father was very old, was as per normal practice and custom. The plaintiff did not show any independent income to purchase property worth more than Rs.20,000/- in 1963 and the presumption of joint family and joint family property stood unrebutted. The plaintiff did not explain his signature on Ex.B.1 and Ex.B.1 signed by all the parties including the father, cannot be rejected on any suspicion due to the 1st defendant not referring to the same in the mutation proceedings. Section 92 of the Evidence Act was no bar to prove Ex.B.1 and P.Ws.1, 4 and 7 were unduly relied on. Exs.B.13 and B.14 show Ex.B.1 to be acted upon and the plaintiff specifically admitted the earlier partition 22 years earlier and further in the cross-examination about the partition between the brothers in 1968, while claiming the suit property and other self-acquired properties of defendants 1 and 2 to be not included. The plaintiff, thus, admitted the existence of ancestral property and in spite of recording that the plaintiff did not come to the Court with clean hands, the trial Court came to erroneous conclusions and hence, defendants sought for reversing the impugned judgment and decree. The 1st appellant died during the pendency of the appeal and his legal representatives were brought on record as appellants 3 to 7 as per orders on A.S.M.P. No.696 of 2008, dated 06-09-2008. Sri Aravinda Kumar Agarwal, learned counsel representing Sri M. Papa Reddy, learned counsel for the appellants has strenuously contended that the amended reliefs in O.S. No.6 of 1986 for declaration, possession and mesne profits are barred by Order II Rule 2 of the Code of Civil Procedure due to not being claimed in O.S. No.3 of 1982 and in the absence of any leave or permission from the Court to seek such reliefs later. The evidence of D.W.1, the senior paternal uncle of the parties and surviving elder member of the family, coupled with the evidence of D.W.4, the vendor of the property under Ex.A.2, is independent, disinterested and acceptable. The signatures on Ex.B.1 could have been compared with admitted signatures in view of the enabling provision under Section 73 of the Evidence Act and in the absence of proof of any income for P.W.1 to purchase or payment of land revenue at any time for the lands, and in the light of the admitted existence of joint family and ancestral properties, the evidence of P.W.1 and the attestors of Exs.A.1 and A.2, P.Ws.4 and 5, stood discredited and P.Ws.2, 3 and 6 were even ignorant about the crops in the suit lands. The evidence produced by the defendants clearly discredits the plaintiff’s claims, apart from the admissions, inconsistencies and circumstances arising out of the plaintiff’s evidence. The panchanamas, sketches and reports of the revenue authorities prove the possession and enjoyment of the defendants since Ex.B.1 and hence, the learned counsel desired the plaintiff to be non-suited with costs. Sri P.V. Narayana Rao, learned counsel for the respondent referred to the absence of any reference to Ex.B.1 in Ex.A.14 application to the Tahsildar by D.W.1 and Ex.A.15 statement about the oral partition being attempted to be improved by introduction of Ex.B.1. The learned counsel referred to the evidence of D.W.2 as indicating that the plaintiff and defendants 1 and 2 purchased properties separately and argued that the evidence of D.W.4, the vendor, cannot be looked into due to Sections 91 and 92 of the Evidence Act. The plaintiff was never claimed to be the manager of the joint family to presume any documents in his name to be in that capacity and in fact, there was no pleading and proof of any ancestral nucleus. The alienations under Exs.A.1 and A.2 after obtaining the necessary sanction and permission under Section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act coupled with Exs.A.3 to A.12 and Exs.A.17 and A.18 pahanies establish the plaintiff’s version and defendants to establish any adverse possession making the suit barred under Article 65 of the Limitation Act, 1963, in which they failed. Hence, the learned counsel desired that the impugned judgment and decree be maintained. Both the learned counsel referred to certain precedents, which will be referred to in due course. The following points arise for consideration in this appeal:

1. Whether the suit is barred by Order II Rule 2 of the Code of Civil Procedure ?

2. Whether the plaint B schedule lands are the separate properties of the plaintiff acquired, possessed and enjoyed by him exclusively since purchase up to October, 1984 ?

3. Whether the plaint B schedule lands are the joint family properties of the parties and their father and were partitioned in June, 1968 and are being enjoyed by the parties in their respective shares ?

4. Whether the suit is barred by limitation ?

5. To what relief ? Point No.1: Order II Rule 2 of the Code of Civil Procedure, 1908 embodies the principle that a suit should include the whole claim of plaintiff in respect of the cause of action and any omission to sue in respect of any portion of his claim debars the plaintiff to sue afterwards in respect of the same except without the leave of the Court to sue for any relief separately. While the rigour of Order II Rule 2 of the Code of Civil Procedure cannot be ignored, if applicable, in the present case it is the same suit that started as O.S. No.59 of 1980 on the file of the District Munsif’s Court, Yellareddy and ended as O.S. No.6 of 1986 in the Subordinate Judge’s Court, Bodhan. The renumbering of the suit in District Munsif’s Court, Madnoor as O.S. No.3 of 1982, the remand of O.S. No.3 of 1982 by A.S. No.18 of 1984 after allowing an amendment in the plaint, the return of the plaint for presentation to proper Court due to consequential loss of pecuniary jurisdiction and the entertaining and disposal of the suit as O.S. No.6 of 1986 by the Subordinate Judge’s Court, Bodhan, do not, in any manner, make the suit originally instituted and the suit ultimately tried to be different suits. If in the same suit, the plaintiff was allowed to introduce a new cause of action and new reliefs on the ground of a subsequent event of dispossession, the same cannot be construed as a former suit giving way to a later suit. If so, Order II Rule 2 of the Code of Civil Procedure has no application and is not a bar to the amendment of the plaint introducing a new cause of action and new reliefs. Point Nos.2 and 3: The plaintiff as P.W.1 claimed that he worked as Mali Patel of Narangal for 12 years and also as Secretary of Co-operative Society of Narangal. He claimed to have worked as Patwari also and to have not taken any amount from his father for purchasing the suit properties, but admitted that he was not having any personal property prior to the purchase of the suit property. He did not specify the income he was getting as Patel or Patwari or Secretary of the Society and from what period prior to the purchase of the suit lands to indicate any surplus income after meeting the minimum needs of maintenance of himself and his family. While claiming to be in possession of Ac.21.00 including the suit lands, P.W.1 stated to be in possession of his share since the family partition 22 years earlier showing that about Ac.14.00 must have been the ancestral property that fell to his share and he also claimed that his father gave Ac.4.00 of land in S.No.108 and Ac.0.10 guntas in S.No.394/ about 6 years earlier to be enjoyed till his father’s death. While the agricultural lands of the family in his possession must be yielding reasonable income, the source of acquisition of suit properties being surplus from such income is not improbable even if P.W.1’s claim of separate possession of such family lands since 22 years earlier were to be considered true. If any such partition or division was subsequent to the purchase under Exs.A.1 and A.2, the source of acquisition under Exs.A.1 and A.2 can primarily be the income from family properties, P.W.1 admitting having no other personal property prior to such purchase and his income from his other occupations being not specified. P.W.2, who tried to claim that P.W.1 purchased the suit land after partition, was not present either at the time of partition or the purchase by the plaintiff. P.W.3 was unaware of the partition or the purchase and he does not know who paid the sale consideration. P.W.4, the attestor of Ex.A.1, does not know whether the plaintiff, defendants 1 and 2 and their father were living jointly or not by the date of Ex.A.1 and he was not present when the negotiations took place. He does not know who paid the remaining consideration before the date of Ex.A.1 or who held the negotiations in respect of S.No.155. P.W.5, the attestor of Ex.A.2 for S.No.164 also does not know whether the plaintiff, defendants 1 and 2 and their father were joint family members by the date of Ex.A.2. But he admitted that the father of the parties was alive. The claim of P.W.6 that Parbhat Rao was financially very weak and was not in a position to purchase any land at that time, was not even the case of the plaintiff and he was not present at the time of the negotiations. He admitted that when S.Nos.155 and 164 were sold to the plaintiff by the original owner, the plaintiff, defendants and their father were living jointly. He also admitted that the family had 28 or 29 acres of dry and wet lands, apart from Ac.10.00 of the father at Sonala by that time and he does not know who paid the sale consideration. He also admitted that before or at the time of purchase of the suit lands, the plaintiff had no separate property of his own. D.W.1, the senior paternal uncle of the parties, spoke about partition of the joint family properties between the parties and their father under Ex.B.1 and also about the earlier partition between him and Parbhat Rao. Though he spoke about the plaintiff having a lorry about 15/20 years back for 5/6 years, the plaintiff himself did not make any such specific claim. The 1st defendant as D.W.2 claimed the consideration for Exs.A.1 and A.2 to have been paid by his father, and denied the plaintiff owning a lorry, but admitted the plaintiff working as Cashier in Grain Merchant Office at Degloor. He claimed the purchase of the suit lands to be with joint family funds by which time the father and the sons were living jointly, giving the income to the father. While he admitted that P.W.1 worked as Patwari for 10 to 12 years, he denied purchase of the suit lands by the plaintiff with his own funds. D.W.4, the vendor of S.No.164 and father of the vendor of S.No.155, claimed the father of the parties to have purchased the suit lands and D.W.9, the scribe of Ex.A.1, claimed S.No.155 to have been purchased by Parbhat Rao. Thus, though the plaintiff worked as Patel, Patwari and Cashier of a Co-operative Society for considerable time, his having any surplus money earned out of such occupations by the time of acquisitions under Exs.A.1 and A.2, was not indicated in the evidence, while owning any lorry for any period and earning any money therefrom were not spoken to by the plaintiff himself. Admittedly, the plaintiff had no other properties by the time of the purchase under Exs.A.1 and A.2 except either the joint family properties under the father and the three sons under joint possession and enjoyment, if there was no partition by that time or any such joint family lands given to his share, if there was a partition prior to Exs.A.1 and A.2. The claims of P.W.1 in his evidence in 1982 about the partition 22 years earlier, may take it to about 1960 and it is also not evident from the evidence that by the time of purchases under Exs.A.1 and A.2 in 1963 and 1967, the plaintiff would have earned such surplus income as to make the purchases from his share of lands. There cannot be any serious controversy about the existence of sufficient joint family nucleus with the income from which the properties would have been acquired, while any exclusive and separate funds of the plaintiff providing the source of consideration under Exs.A.1 and A.2 are, thus, doubtful. The plaintiff as P.W.1 claimed that he made the purchases under Exs.A.1 and A.2 with his own income and did not take any amount from his father for purchasing the suit properties. Though P.W.2 tried to claim his presence at the time of purchase 10 to 15 years earlier, he later admitted that he came to know about the purchase only from P.W.1. P.W.3 does not know who paid the sale consideration for the purchase and P.W.4, the attestor of Ex.A.1 for purchase of the land in S.No.155, admitted D.W.9 to be the scribe of Ex.A.1 and claimed that the plaintiff paid Rs.900/- and odd to Govindu, the seller, at the time of registration of Ex.A.1 towards balance of sale consideration. The other attestor to Ex.A.1 Bandappa, was not examined and P.W.4 was not present when the negotiations were held for the sale with Govindu and he does not know who paid the remaining sale consideration before the date of Ex.A.1 or who was the person that actually held the negotiations with Govindu. P.W.5, who attested Ex.A.2 sale deed for purchase of the land in S.No.164, claimed to be present at the time of negotiations also. He stated that the plaintiff paid Rs.6,500/- out of Rs.9,000/- as advance at the time of negotiations and Rs.2,500/- under Ex.A.2. But he does not know whether the father and the sons were joint family members by that time and does not remember the name of the other attestor or to which village the other attestor belongs. P.W.6, claiming to be the neighbouring land owner, tried to claim that Parbhat Rao was financially very weak and was not in a position to purchase any land when the plaintiff purchased the suit lands, but admittedly he was not present at the time of negotiations or at the time of the sale deeds. He admitted that Parbhat Rao and his sons were living jointly at that time and that the plaintiff had no separate property of his own by that time, while the father and the defendants had about 28 or 29 acres of dry and wet lands and the father had about 10 acres of land at Sonala. He also does not know who paid the sale consideration to the vendors. P.W.7, an advocate and scribe of Ex.A.1, claimed to have drafted Ex.A.1 on the instructions of the parties and to have got it written by D.W.9. The 1st defendant claimed as D.W.2 that his father purchased the suit lands in the name of the plaintiff by paying the consideration at the time of sale deeds and that his father paid Rs.6,000/- under Ex.A.2, while paying Rs.3,000/- earlier. He could not give the exact dates of payment of consideration, but claimed to be present at the time of execution of Ex.A.2. He also does not remember whether his father obtained receipts for Rs.3,000/- and Rs.6,000/- from the vendor and D.W.4 is the vendor under Ex.A.2 and the vendor under Ex.A.1 was claimed to be his son, which was corroborated by P.W.6. D.W.4 claimed that the father of the parties settled the sale terms and purchased the land under Ex.A.2 by paying the consideration of Rs.9,000/- to him, at which time the plaintiff and the 1st defendant were also present. He stated that the parties and their father were joint family members at that time and that he executed the sale deed in the name of the plaintiff at the request of Parbhat Rao who told that the plaintiff was managing the joint family properties. He stated about giving an affidavit for the defendants about the sale by him and his son to the father of the parties and the receipt for Rs.6,500/- claimed to have been given by him to Parbhat Rao, was, of course, not before the Court. He admitted that the earlier agreement of sale Ex.A.16 bears the thumb mark of his wife, and except a suggestion about his son-in-law and the 1st defendant being close friends, there was no reason attributable to him to resort to falsehood in favour of the defendants. The scribe of Ex.A.1 as D.W.9 stated that the father of the parties purchased S.No.155 under Ex.A.1 from Govindu, at which time the plaintiff, the 1st defendant and Parbhat Rao were present, apart from the attestors to Ex.A.1. He claimed that Parbhat Rao paid Rs.900/- at the time of Ex.A.1 and that the document was written on the instructions of Parbhat Rao by P.W.7. D.W.9 being the scribe of Ex.A.1 and his being the clerk of P.W.7 at the relevant time, is admitted and D.W.9 was also not shown to have any specific reason to resort to falsehood to favour the defendants. Shivraiah, the elder brother of Parbhat Rao, the father of the parties, and aged 80 years as D.W.1, stated that he and Parbhat Rao partitioned about 20 years earlier and since then they were living separately and that he and Parbhat Rao had ancestral land at Sonala village given to Parbhat Rao and his second wife Bhoomavva at the time of partition and standing in the name of Parbhat Rao and enjoyed by Bhoomavva after Parbhat Rao’s death. Though he does not know whether Parbhat Rao purchased entire lands at Husgul in the name of Bhoomavva and whether they were sold away by the defendants for Rs.40,000/-, he need not have been aware of all the transactions of Parbhat Rao and his children. He was speaking about Ex.B.1 partition list as an attestor and the eldest surviving member of the family being involved in such partition, is natural. D.W.1 claimed that one week after the partition, 13 years back, Ex.B.1 was prepared in the presence of himself, D.W.6, Moga Hanmanthu and Shujattpur Laxman at the instance of Bhoomavva, the mother of the 2nd defendant, a minor at that time, to avoid future complications. D.W.1 further claimed that Parbhat Rao purchased the suit lands from out of the joint family funds and that the plaintiff and defendants 1 and 2 got 1/3rd share in both the items. He confirmed his thumb mark as a witness to Ex.B.1 and it is said that he does not know what was written in Ex.B.1. It was obviously due to his being a marks man. D.W.1 did not remember who was the scribe of Ex.B.1 and whether Ex.B.1 was written on a stamp paper or plain paper, which may be a natural lapse of memory due to lapse of time and he rightly stated that Ex.B.1 was written in June. If D.W.1 does not know about the movable properties partitioned, but was sure that Parbhat Rao dictated the contents of Ex.B.1 and he does not know the consideration for the purchase of the suit lands paid by Parbhat Rao but only knew about the demand by the plaintiff to the defendants to give up the suit lands in his favour, it does not sound unnatural. It is true that he admitted that there was a dispute between him and the plaintiff, the neighbouring resident, regarding a lane in between their houses but the elder member of the family was stated by P.W.1 himself to be not inimical towards him. It is true that D.W.1 admitted that the plaintiff had a lorry 15/20 years back for 5/6 years and was working as patwari since 20 years for three villages. But the same is no indication of any surplus income for the plaintiff to purchase the properties in 1963 and 1967. D.W.6, Baswanth Rao, was the scribe of Ex.B.1 and claimed to have participated in the partition and later execution of Ex.B.1 as an elder and he claimed like D.W.1 that Ex.B.1 was written on the dictation of Parbhat Rao in the presence of D.W.1, Laxman Rao, maternal uncle of the plaintiff, and the 1st defendant and Hanmanthu, father-in-law of the 2nd defendant. He also stated Ex.B.1 to be written in June and while D.W.1’s daughter was, of course, given in marriage to his son Vittal, D.W.6 claimed ignorance about any dispute or enmity between D.W.1 and the plaintiff. D.W.6 was, of course, an accused in a murder case and a theft case. But his being the scribe of Ex.B.1, can not be denied. D.W.6 explained that there was no reference to movable properties in Ex.B.1 or any reference to the physical division three days earlier. Though D.W.6 stated that Ex.B.1 was written as a partition deed, the nature of the document has to be determined from its contents and like D.W.1, D.W.6 also stated that the land at Sonala was given to the parents of the parties, which was not mentioned in Ex.B.1. But on seeing Ex.B.1, he stated that the land at Sonala was also divided into three shares. The evidence of D.W.1 and D.W.6 is broadly consistent about the manner of execution of Ex.B.1 including the time of execution, the persons who signed on it, etc. The plaintiff as P.W.1 claimed that his father himself partitioned the remaining ancestral lands between him and the defendants into three shares about 22 years back after retaining Ac.8.15 guntas dry at Sonala village and Ac.0.17 guntas were in Shakerga (big) village, thus, taking the partition to about 1960. The plaintiff claimed that he was not a joint family member with the defendants at the time of purchase of the suit lands in 1963 and

1967. While admitting that after the oral partition, they did not apply for mutation of their respective shares, he denied his signature on Ex.B.1 dated 05-06-1968, but later stated during his cross-examination that in the partition between him and his brothers in 1968, only the ancestral property was partitioned setting apart some land for the maintenance of the parents and not including the suit properties and other self-acquired properties of defendants 1 and 2. He further claimed that after the death of the parents, the properties set apart for their maintenance, were also partitioned a year earlier i.e. much later to the suit, for which there is no corroboration. The claim of P.W.1 that till the death of his father in 1978 or 1979, the family property was joint and that the joint family properties were divided after the death of his father, is not consistent with his earlier claims. Though he initially denied their father being shown as owner and possessor of the ancestral lands up to date in the revenue records, he admitted that in Exs.B.15 to B.25 certified copies of pahanies, their father was shown as the owner and cultivator. If the partition was in 1968 as admitted by P.W.1 at one stage, the acquisition of the suit properties under Exs.A.1 and A.2 was obviously when the plaintiff was a member of the joint family. P.W.3, claiming to be owning land to the East of S.No.164, stated that the plaintiff is cultivating S.No.164 since 20 years and never the defendants, but he does not know about the partition of the lands of the parties. However, he again stated that the plaintiff and the defendants are in possession of the suit lands since 8 or 9 years after partition about 8 years back and he stated that out of Ac.6.00, the lands of the plaintiff and defendants 1 and 2 are in the middle, North and South respectively with bunds in between showing their possession. He also stated that prior to the division by bunds and separate cultivation since 8 to 10 years earlier, the parties were living together and cultivating jointly. Thus, from his earlier deposition on 13-04-1982 recorded in O.S. No.59 of 1980, P.W.3 deviated in his deposition in O.S. No.6 of 1986, dated 28-09-1988 shifting in favour of the defendants’ version. P.W.6 claimed to be having land adjoining the suit land in S.No.155 on the Western side and also claimed that S.No.164 is at a distance of about two furlongs after two lands from his land. He corroborated the plaintiff’s version by claiming that in the absence of the plaintiff, when he and his wife went to Nanded for treatment of the plaintiff’s wife, defendants 1 and 2 occupied Ac.5.00 in S.No.155 and Ac.4.00 in S.No.164, but he admitted that D.W.4 was the original owner of the suit lands and that D.W.4 and his son Komati Govindu sold the suit lands to the plaintiff respectively. He also admitted that he was not present at the time of negotiations or execution and registration of the sale deeds and further admitted that the parties and their father were living jointly at the time of sale of the suit lands to the plaintiff. He also admitted that the plaintiff had no separate property of his own before or at the time of purchase of the suit lands. He was unaware of the panchanama by the Revenue Inspector and he does not know who paid the sale consideration for the suit lands. Though he tried to claim that Parbhat Rao was financially very weak at the time of purchase, he admitted that the father of the plaintiff and defendants had about 25 or 29 acres of dry and wet land at Shakarga Big village and the plaintiff’s father had about Ac.10.00 of land in Sonala village before the suit lands were purchased. P.W.2 claimed to be having land to the South of S.No.155, but he does not know what crops were raised in S.No.155 in 1979-80 and 1980-81. He admitted that there were disputes between the parties since 10 to 12 years and though he claimed the defendants to have occupied Ac.5.00 and Ac.4.00 respectively four years earlier to his deposition on 14-09-1988, he does not remember in which season the defendants occupied the lands. The knowledge of P.W.6 and P.W.2 about the purchase of lands by the plaintiff was only on what the plaintiff himself told them about the purchase and though P.W.2 claimed that P.W.1 purchased the land after partition, he was admittedly not present at the time of partition and his claims are contrary to those of P.W.6. The plaintiff as P.W.1 admitted not filing any land revenue receipts regarding the suit lands though he claimed to be in possession of the land revenue receipts for the lands in his possession and he conveniently claimed ignorance about any payment of land revenue by the defendants for the lands possessed by them. It was the specific suggestion by the defendants that the land revenue receipts would have shown that the plaintiff was paying land revenue only for 1/3rd share in the suit lands and P.W.1 had to admit that he knew that the defendants filed their land revenue receipts in the suit and that the land revenue receipts show the defendants to have paid land revenue for the suit lands. P.W.1 again claimed ignorance about the local enquiries conducted by the Revenue Inspector or the Tahsildar or their conducting panchanamas regarding possession of the suit lands, which could not have been probable, if he were in exclusive physical possession and enjoyment of the suit lands. P.W.1 further admitted the issuance of Exs.B.2 to B.12 land revenue receipts to the defendants by the concerned Mali Patels. P.W.1 filed Ex.A.19 land revenue receipt, dated 13-12-1981 subsequently and he admitted that even after the death of his father in 1978, he never applied for mutation of lands in his name. He also had to admit that in Exs.B.15 to B.25 pahanies, his father’s name is shown as the owner and cultivator. The claim of P.W.1 in his evidence in February, 1988 about partitioning the lands set apart for the maintenance of the parents also one year prior to such evidence after the death of their mother, was not shown to be evidenced by any document and when this litigation was going on between the plaintiff and defendants for more than eight years earlier since after the death of the father, such oral partition of the lands set apart for the maintenance of the parents does not appear natural or convincing. The alleged encroachment by defendants in October, 1984 of Ac.5.11 guntas in S.No.155 and Ac.4.00 in S.No.164 due to P.W.1 being out of station, is equally uncorroborated and the extent so occupied allegedly significantly more or less tallies with the claims of the defendants of being in possession of 2/3rds of the suit lands. While he admitted the family properties being joint till the death of his father in about 1978, if the separate or self-acquired properties of the defendants were not included in the partition similar to the plaintiff claiming the suit lands being kept out of partition being self-acquired properties, there would have been no provocation for the defendants to meddle with the suit property in the ordinary and natural course of human events. P.W.2 could not say what crops were raised in the land in 1980-81 or 1979-80 and he admitted there being disputes since 10 to 12 years prior to his evidence in 1982 between the plaintiff and the defendants regarding the land. In spite of being the adjacent owner knowing about the possession of P.W.1, he did not claim to have made any attempt to prevent the defendants encroaching upon the land allegedly about four years prior to his evidence in 1988. The claim of P.W.2 that P.W.1 purchased the suit land after their family partition, is not the specific case of the plaintiff and even dividing bunds were constructed by defendants 1 and 2 in the land, according to P.W.2, but P.W.3 stated that there were no dividing ridges in S.No.164. P.W.3 also does not know about the disputes between the parties and he had seen the plaintiff cultivating S.No.164, which is no proof of the exclusivity of the plaintiff’s title and possession. P.W.3 stated the plaintiff and defendants to be in possession of the suit lands since 8 or 9 years, partitioning the suit lands about eight years prior to his deposition in 1988, which is not in tune with the claim of the plaintiff about the alleged encroachment in 1984 or the same having nothing to do with the partition between the brothers. P.W.3’s version again about dividing bunds and cultivation of almost equal extents by the brothers since 8 to 10 years, prior to which the brothers were living together and cultivating jointly, is more in tune with the defence version. P.W.6 was not present when the talks of sale were held nor was he present at the time of registration and he was positive that Parbhat Rao was coming to the suit lands and was looking after the cultivation and agricultural operations. He was unaware about the inspection by the Revenue Inspector under a panchanama. D.W.1 stated about the plaintiff working as an employee in grain merchant shop for four years when the suit lands were purchased, but again without any details of what he was earning as such employee. The evidence of the 1st defendant as D.W.2 about the execution of Ex.B.1 on the insistence of his step mother Bhoomavva, is in tune with the claims of D.Ws.1 and 6 and he stated about the parties, witnesses and the scribe subscribing their signatures or thumb marks to Ex.B.1. He was positive about the shares, their payment of land revenue under Exs.B.2 to B.12 and Ex.B.13 and Ex.B.14 panchanamas conducted by Revenue Inspector and Tahsildar specifically showing the shares of the brothers as found on the spot. While admitting the absence of any reference to Ex.B.1 in Exs.A.14 and A.15, D.W.2 also could not state the dates on which their father paid the consideration under Exs.A.1 and A.2. While admitting sale of lands by him and the 2nd defendant, which stood in their names, like the plaintiff, D.W.2 also did not file any application for mutation after the death of their father before the suit and the suggestion to D.W.2 that Exs.B.13 and B.14 were without notice to and behind the back of the plaintiff, cannot be accepted without corroboration, as the public servants cannot be presumed to have taken sides in the private dispute or to have not discharged their official duties regularly, impartially and judiciously. The suggestion to D.W.2 that the payment of land revenue under Exs.B.2 to B.12 was with the money of the plaintiff given to them, was not even the claim of P.W.1 and D.W.2 denied the plaintiff ever owning a lorry. Like the plaintiff, D.W.2 admitted not having any self-acquired property by the time of partition. D.W.3, who corroborated the version of the defendants, stated that his wife, the adjoining land owner, affixed her thumb mark in the Panchanama conducted by the Revenue Inspector and that there are three ridges in suit S.No.155. Merely because his sons studied when the 1st defendant was a teacher, such interestedness as would persuade him to speak falsely, cannot be presumed. When he was examined again, he stated that he himself signed on the Panchanama drafted by Patwari and again stated that he affixed his thumb impression and again admitted that his wife subscribed to Panchanama but not he. The vacillations of the rustic witness at that distance of time of about 11 years need not be viewed harshly. D.W.4, the vendor of S.No.164 and father of the vendor of S.No.155 was positive about the presence of the father and the children who were living jointly throughout the transactions and the father paying the consideration while requesting the sale deeds to be in the name of the plaintiff. Ex.A.16 agreement of sale was admitted by D.W.4, but the truthfulness of the independent witness, D.W.4, cannot be suspected solely on the suggestion of his friendship with the 1st defendant. D.W.5 is the attestor of Ex.B.14 Panchanama conducted by Tahsildar, Madnoor regarding possession and ownership of the suit lands and he stated the plaintiff to be absent at that time, but the observations recorded by the public official before an independent witness, in Ex.B.14 need not be suspected for that reason, more so when D.W.5 stated that the plaintiff was not in the village on that day. D.W.7 is related to the parties and the adjacent owner to S.No.164, claiming the plaintiff and the defendants to be in possession in equal shares. He also claimed to have given his affidavit on behalf of the 1st defendant and D.W.8 is the neighbouring land owner in S.No.155 who spoke similarly about equal enjoyment of the said land by the plaintiff and the defendants with dividing bunds between the shares. Thus, the self-serving claims of the plaintiff as P.W.1 cannot be considered to have been strongly corroborated by P.W.2, P.W.3 and P.W.6 about the exclusive possession and enjoyment of the plaintiff, while the evidence of P.Ws.4, 5 and 7 about the purchase of the suit lands stood strongly contradicted by the evidence produced for the defendants. Even if the evidence of D.W.2, the 1st defendant, suffers the same vice of interestedness as P.W.1, the evidence of the eldest surviving member of the family as D.W.1, the vendor of S.No.164, who is also the father of the vendor of S.No.155 as D.W.4, the scribe of Ex.A.1 as D.W.9, the attestor of the Panchanama by the Revenue Inspector as D.W.3, the attestor of Ex.B.14 Panchanama by the Tahsildar as D.W.5, the neighbouring land owners respectively as D.Ws.7 and 8 and the scribe of Ex.B.1 as D.W.6, is clearly more independent, natural and convincing than the oral evidence for the plaintiff. Exs.A.3 to A.12, A.17 and A.18, copies of pahanies for the years 1967-68 and 1969-70 to 1979-80, mention the plaintiff to be the pattedar and possessor for Ac.7.37 cents (guntas) in S.No.155 and Ac.6.00 in S.No.164. As the documents of title Exs.A.1 and A.2 for the said lands stand in his name, the said entries in Exs.A.3 to A.12, A.17 and A.18 are obviously consequential and by themselves they cannot establish the nature of acquisition of the properties, as even according to the defendants, the two pieces of land remained with the joint family till the partition in 1968 and continued to be in possession and enjoyment of the brothers even after 1968 though in their respective shares. The entries in the pahani patrikas showing the plaintiff, in whose name the lands stand, as pattedar and possessor, while may be positive circumstances that can be relied on by the plaintiff, cannot by themselves non-suit the defendants. Exs.B.15 to B.25 copies of pahanies for 1968-69, 1969-70 and 1971-72 to 1979-80 relating to other lands of the family standing in the name of Parbhat Rao, the father of the parties, similarly show Parbhat Rao to be the pattedar and possessor obviously due to the lands standing in the name of Parbhat Rao. It is true that in spite of the partition either 22 years earlier as claimed by the plaintiff or in 1968 as claimed by the defendants, all the lands continued to be shown as belonging to and under the possession of Parbhat Rao in the pahanies. While the division of the ancestral properties in the partition 22 years earlier was admitted by the plaintiff and while he was given some lands under such partition (beyond the suit lands), even his name was not mutated in the pahanies, which is equally true in respect of the defendants also. Exs.B.15 to B.25 may indicate that notwithstanding the partition between the parties, consequential mutation was not effected in the pahanies in respect of the respective shares of the brothers and if so, continuance of the name of the plaintiff as pattedar and possessor in respect of S.Nos.155 and 164, as seen from Exs.A.3 to A.12, A.17 and A.18, may not improbablise the suit lands also being the subject of partition. Ex.A.19 is the only land revenue receipt filed by the plaintiff dated 13-02-1981 which was subsequent to the original filing of the suit in 1980, whereas Exs.B.2 to B.12 land revenue receipts filed by the defendants were from 29-01-1975 to 02-12-1982 till after the suit. Exs.B.5 to B.7, B.10 and B.12 in the name of the 1st defendant and Exs.B.8, B.9 and B.11 in the name of the 2nd defendant mention the plaintiff, son of Parbhat Rao also and thus, the said land revenue receipts are as though for the land registered in the name of the plaintiff as the pattedar, defendants 1 and 2 paid the land revenue in those years. It is true that the defendants did not produce any proof of payment of such land revenue since 1968 since the alleged partition itself, but it is evident that they were paying land revenue for the suit survey Nos.155 and 164 since much prior to the suit. Ex.A.14 is the copy of application made by the 1st defendant on 03-02-1979 seeking entries in the revenue records in his favour in respect of S.Nos.155 and 164 and obviously in pursuance of the same, a panchanama was conducted by Revenue Inspector under Ex.B.13 dated 07-02-1979. Ex.B.13 panchanama was conducted by Revenue Inspector in the presence of five panchas and it was mentioned that both the plaintiff and the 1st defendant were called to the spot, but the plaintiff refused to come, due to which, the panchas, who were neighbouring pattedars, attended the spot. In the presence of the 1st defendant, the panchas found that a boundary was fixed between the three shares with the parties enjoying Ac.2.00 each in S.No.164 and the plaintiff and the 2nd defendant enjoying Ac.2.26 guntas each in S.No.155 leaving Ac.2.25 guntas to the 1st defendant. While the plaintiff was stated to have cultivated cotton in his Ac.4.26 guntas, the 1st defendant was stated to have cultivated jawar in S.No.155 and cotton in S.No.164. The 2nd defendant was stated to have cultivated cotton in S.No.155 and groundnut in S.No.164. If the entire land was under the possession of the plaintiff, it is unnatural that different crops could have been raised and that too in the respective extents, which appeared to have been physically divided in tune with the claims of the defendants. The panchanama appeared to have been scribed by Patwari of the village and attested by Patel of the village also, apart from five panchayatdars and four witnesses including the Sarpanch before the Revenue Inspector. Similarly, Ex.B.14 is the panchanama conducted by the Tahsildar, Madnoor in the presence of three panchas on 12-10-1980. The panchanama recorded that it was learnt that the parties, who are natural brothers, equally divided their land some years back. The panchanama noted that while the shares of the plaintiff and the 2nd defendant had standing cotton crop, the land of the 1st defendant had jawar crop planted eight days earlier. In respect of S.No.164 also, the panchanama recited that it was learnt that the three brothers cultivated the land in respective extents. The panchanama found that there was jawar crop in the lands of the defendants, while the land of the plaintiff had ‘Avisalu’ crop. The panchanama stated that it was learnt that the three brothers were respectively cultivating their respective shares. The panchanama was attested not only by the three panchas and three witnesses but also by the scribe, Patel, Patwari, Revenue Inspector and the Tahsildar. It is true that Ex.B.14 unlike Ex.B.13 did not state about any intimation of conducting of panchanama to the parties. But the Revenue Inspector or the Tahsildar, the Patel or the Patwari or the Panchas or the witnesses cannot be presumed to be parties in fabricating any false documents, in the absence of any motive or reason for any of them to take sides in the disputes between the brothers. The belated claim of the plaintiff while amending the suit about the alleged dispossession in the second week of October, 1984 can be reasonably linked to an attempt to explain away Ex.B.14 dated 12-10-1980. But there was not even such attempt to explain Ex.B.13. D.W.5, the attestor of Ex.B.14, stated about the enquiry by the Tahsildar about possession of S.Nos.155 and 164, the Tahsildar conducting Ex.B.14 panchanama, the scribe of which is Lingappa, which was signed by Village Officers. He claimed the defendants to be present but not the plaintiff and while he rightly stated about the standing jawar crop in the land of the 1st defendant, he, of course, stated cotton crop to be present in the shares of the plaintiff and the 2nd defendant contrary to Ex.B.14. He stated the boundaries of S.No.155 as described in Ex.B.14 and explained that the plaintiff was not in the village on that day. D.W.5 was not suggested to be having any reason or motive to resort to falsehood and his independent evidence corroborates Ex.B.14. In Ex.A.15 statement before Tahsildar during the enquiry, the 1st defendant stated on oath about the division 10 to 15 years earlier during the life time of his father, who purchased the land in the name of the plaintiff, for which there was no partition deed, but Sri Sayanna, Sri Nivarthi and others were witnesses, there being specific boundaries for the respective shares. He was specific that there was no written partition and stated that he did not apply for mutation in respect of the lands standing in the name of his father. While the statement will be discussed further, suffice to note at this stage that the claims of the 1st defendant about the physical division are corroborated by Exs.B.13 and B.14 and D.W.5. While the Tahsildar’s panchanama was dated 12-10-1980, his order earlier on 27-06-1980 is Ex.A.13. The Tahsildar refers to Ex.A.14 petition by the 1st defendant, the enquiry by the Revenue Inspector, Madnoor, submission of his report on 07-02-1979 (obviously after Ex.B.13 panchanama dated 07-02-1979) and the objection petition dated 08-02-1979 by the plaintiff. The Tahsildar noted the purchase of the suit lands in the name of the plaintiff, the death of Parbhat Rao on 18-11-1978, the claims of the 1st defendant about the possession of his share since 12 years after demarcation and division 10 to 15 years back during the life time of Parbhat Rao under an oral partition and his claim of the lands being purchased by the father in the name of the eldest son. Ex.A.13 also refers to a similar petition by the 2nd defendant dated 07-05-1979. The Tahsildar refers to his conducting local enquiry in the village, but the details or contents of such enquiry are not before the Court to know why he could not come to the conclusion as to who cultivated the said lands. The Tahsildar felt that the family dispute between real brothers of a civil nature has to be resolved in a Civil Court. The defendants have claimed that they approached the Revenue Divisional Officer against Ex.A.13 orders, on which the matter was remanded for fresh disposal to the Tahsildar and Ex.B.14 panchanama dated 12-10-1980 appears to be consequence of such remand order. What further happened after Ex.B.14 and whether there were any further findings or orders by revenue officials, are not before the Court. These documents, thus, show that while the name of the plaintiff is being shown as the pattedar and possessor in the pahanies as a natural corollary to the title deeds in his name, just like Parbhat Rao the father being shown as the pattedar and possessor in respect of the lands standing in his name, there is no evidence of payment of land revenue exclusively by the plaintiff for the suit lands in S.Nos.155 and 164 at any time prior to the suit, while the defendants started paying land revenue for the said survey numbers at least since 1975 until beyond the suit. While in the application and statement before the Tahsildar, the 1st defendant asserted physical division of the land into three equal shares and respective enjoyment by the brothers, the panchanamas conducted by the Revenue Inspector and Tahsildar on 07-02-1979 and 12-10-1980 before the village officers, independent mediators and witnesses including the neighbouring land owners, resulted in noting of unmistakable physical features pointing out division of the two items of land into three shares each and separate cultivation and enjoyment of their respective shares by the three brothers. While there appeared no justifiable reason for vacillation of the Tahsildar in Ex.A.13 dated 27-06-1980, none of the documents, which can be discarded as fabricated or manipulated, unmistakably run counter to the claims of the plaintiff. Neither party has examined any person connected with the preparation of the pahanies or issuance of land revenue receipts or any other persons connected with Exs.B.13, B.14 and A.13 except D.W.5. Ex.A.20 permitted the seller, Govind of Sonala, to alienate Ac.7.37 cents (guntas) in S.No.155 to the plaintiff under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 on 12-03-1963. This permission for alienation is no proof of the claim of either party when even the defendants claimed that Parbhat Rao purchased the property in the name of his eldest son, the plaintiff, even in which event the permission for alienation will be obviously obtained in his name. Ex.A.1 soon followed suit in respect of S.No.155. In respect of S.No.164, Ex.A.16 agreement of sale was first executed by D.W.4 on 20-04-1967 in favour of the plaintiff under which Rs.305/- were recited to have been paid under the agreement, the balance being payable at the time of affidavit and sale deed respectively. The possession was recited to have been delivered to the plaintiff and it further recited that D.W.4, who earlier decided to gift the land to his wife, now decided to give the consideration of Rs.9,000/- to her and that both of them sold the land with their consent. The wife of D.W.4 also put her right thumb impression on the document in the presence of two witnesses. Ex.A.2 dated 23-10-1967 followed suit and Exs.A.20, A.1, A.16 and A.2 being executed in favour of the plaintiff, does not, in any way, run counter to the version of the defendants, though it is true that the initial burden of explaining the documents exclusively in the name of the plaintiff, lies on the defendants. The preponderance of probabilities arising out of the documentary evidence neither strengthens the prevaricating statements of the plaintiff and his witnesses nor weakens the better placed and more independent version of D.Ws.1 to 9. It is true that a member of a Hindu undivided family can acquire property of his own unconnected with the joint family as his self-acquired, as held in Kavitha Goud v. Nookala Sudarshan Reddy[1]. But the question herein is not whether there can be such acquisition, but whether there was such acquisition and such acquisition was not probablised by the evidence. Similarly, there is no presumption that any property acquired by a member of a Hindu joint family, is deemed to be joint family property as indicated in B. Basiah v. Singanamala Esurathanam[2]. But in that case, there was absence of evidence about either that the plaintiff was managing the joint family or that he had no independent source of income. But the present case is more similar to the principle laid down by the Apex Court referred by the learned Judge that a new acquisition by the member of the joint family in his own name with no independent source of income leads to the presumption that the new acquisition is joint family property. It is, of course, true that it is well established as held by the Apex Court in Valliammal v. Subramaniam[3] that the burden of proving that a particular sale is benami, lies on the person who alleges the transaction to be benami and any difficulties do not relieve such person from discharging the onus that rests on him or rely on any conjectures or surmises as a substitute for proof. It is also true that the six circumstances spelt out by the Apex Court determine the question. In the present case, circumstance of source of consideration was recited in the documents of to be emanating the plaintiff, but contradicted by very strong evidence including that of the person who sold the property. The second factor, which is the motive for registering the lands in the name of the plaintiff, is sought to be explained with reference to the plaintiff being the eldest of the brothers, which is not unnatural. The third circumstance of the possession of the parties and the relationship between them are admitted with no artificiality in a joint family purchasing some property in the name of one of the members even if with the funds of the joint family. Custody of title deeds was, of course, not with the defendants, but the plaintiff as the eldest member would have naturally been in possession of such title deeds after the death of father, which indicates no positive factor. The circumstance of nature and possession of the property after the purchase and the sixth circumstance of the conduct of the parties in dealing with the property, were probablised to be indicating the joint family enjoying the properties soon after purchase and the brothers enjoying their respective shares separately since after division. As pointed out by the Apex Court itself, the question is largely one of fact without any absolute formulae or acid tests uniformly applicable to all situations and the circumstances in the present case are not such as to indicate the failure of the defendants to discharge the onus of proof on them in this regard, though in law ostensible title vests in the person in whose favour the sale deed was executed. I n P. Venkata Reddy v. P. Vijayalakshmi[4], the same tests were extracted from the precedents and on facts it was found that the plaintiff had independent source of income as he was doing business and that positive proof of passing of consideration from the hands of the family members had not been established, apart from the original title deed being in the custody of the plaintiff and the tax being paid regularly only by the plaintiff. In the present case, payment of tax by the plaintiff is not proved and any independent source of income for purchase of the suit property was not established. Passing of consideration from the family is not improbablised. I n Mahendra C. Mehta v. Kousalya Co-op. Housing Society Ltd.[5], it was pointed out that if the defendant wants to defeat the right of the plaintiff, he must establish his adverse possession for over 12 years, which has the effect of extinguishing the title of the owner. It was pointed out that while pahanies are maintained mainly for purpose of revenue collection and noting the statistics, the mere entries in the pahanies cannot prove positive overt acts of possession. It was further pointed out that mere entries in revenue records do not confer title and the title will not be lost merely because the name of the person is not mutated in the revenue registers. It was further held that possession however long without the animus to hold it adversely, does not amount to adverse possession and adverse possession has to be specifically pleaded and proved with reference to Article 65 of the Limitation Act, 1963 applicable to the suits based on title. Perfection of title by adverse possession has to be proved by the defendants. The principles are unexceptionable, but the claim of the defendants herein is not based on any perfection of title by adverse possession, but on acquisition of title under a partition between the brothers to 1/3rd share respectively in the suit lands and it is not solely based on the entries in revenue records that they are making their claim, but the revenue records or proceedings conducted by the revenue officials are relied on as strong corroborating circumstances for probablising their claims. The evidence of D.W.4, the seller of one item and father of the seller of another item of land was contended to be hit by Sections 91 and 92 of Evidence Act (Pawan Kumar Gupta v. Rochiram Nagdeo[6] and Nandam Mohanamma v. Markonda Narasimha Rao[7] were referred in this regard). But the evidence of D.W.4 is not in any manner inconsistent with the contents of the sale deeds in a sense of his not disputing the transfer of properties in favour of the plaintiff under the sale deeds or the recitals in the documents in that regard, but was only stating about the father of the plaintiff actually paying the sale consideration under both the documents. Even if his evidence to that extent were to be considered to be contradicting the written terms and conditions, his evidence is still relevant in indicating the nature of acquisition of the properties. The plaintiff was, of course, not shown clearly to be managing the joint family at any time and any ancestral nucleus or income were not very specifically pleaded, but it is probablised by the evidence that the father and brothers were basically dependent on agricultural income from the family lands and were not shown to be having any significant other sources of income. While permission for transfer under Section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act was admittedly obtained for Exs.A.1 and A.2, in Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh[8], it was held that the burden of proving that any particular property is joint family property, is upon the person, who claims it as coparcenery property, but if the possession of adequate nucleus of the joint family property is either admitted or proved, any acquisition by a member of the joint family is presumed to be joint family property. Then the burden shifts on to the person who claims the property as self-acquisition, acquired without any aid from the family estate. Similarly, in D.S. Lakshmaiah v. L. Balasubramanyam[9], the Apex Court pointed out with reference to the earlier precedents that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family and the one who asserts has to prove that the property is a joint family property. However, if the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on to the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. The various circumstances arising out of the evidence on record clearly suggest that the defendants succeeded in discharging the initial burden, while the plaintiff did not succeed in probablising the acquisition of the suit property to be in the character of self-acquisition. The request also is for comparison of the signature of the plaintiff on Ex.B.1 with the admitted signatures of the plaintiff in other documents by the Court itself, but it is well settled that no conclusions can be based on such mere comparison with the naked eye and in the absence of any scientific basis or expertise for indulging in such comparison, the same is not being attempted. Even the impugned judgment clearly opined that Section 92 of the Evidence Act does not preclude the admission of any evidence to show the benami nature of the transaction and that the defendants were paying the land revenue to the Government, while the plaintiff did not file any land revenue receipt to show his possession. The trial Court also observed that the contention that the plaintiff was dispossessed in October, 1984, was not proved by the plaintiff. It was concluded that the defendants took possession some years prior to filing of the suit and that the plaintiff did not come to the Court with clean hands showing correctly when he lost possession, while it is unclear from the impugned judgment as to how those some years could or could not have been more or less than the prescribed period of limitation for extinguishment of title by prescription or adverse possession. While the conclusions trial Court favour of acceptability of the oral and documentary evidence of the plaintiff in the absence of any credibility of oral and documentary evidence for the defendants cannot be concurred with for the various reasons already detailed, the consequential decree declaring the plaintiff’s title and directing delivery of possession to him with mesne profits, has to be reversed. Thus, the alleged partition much prior to the purchases under Exs.A.1 and A.2, was not clearly probablised and the existence of adequate joint family nucleus is self-evident from even the evidence for the plaintiff. While the name of the plaintiff’s father shown in the pahanies continued without any proof of payment of any land revenue by the plaintiff, the payment of land revenue by the defendants was proved. The plaintiff admittedly had no personal property prior to the purchase of the suit property and the evidence of D.W.1, D.W.6, D.W.9, D.W.3 and D.W.5 provides ample corroboration for the defence version, further strengthened by Exs.B.13 and B.14 panchanamas conducted by Revenue Inspector and Tahsildar respectively. Even in the earlier proceedings, when an interim injunction in favour of the plaintiff restraining the defendants from interfering with his possession was granted on merits on 23-03-1981 in I.A. No.416 of 1980 in O.S. No.59 of 1980 by the District Munsif, Yellareddy, the same was set aside by the District Judge, Nizamabad in C.M.A. No.11 of 1980, dated 06-11-1981 and the matter was remanded to the trial Court for fresh disposal. The judgment in O.S. No.3 of 1982 (old O.S. No.59 of 1980 on the file of District Munsif, Yellareddy), dated 05-11-1982 on the file of the District Munsif, Madnoor concluded on the evidence placed before him that the plaintiff failed to prove his exclusive possession of the suit properties and was not, hence, entitled to permanent injunction simplicitor, though Ex.B.1 partition deed was opined by him to be a fabricated document. In A.S. No.18 of 1984, the Subordinate Judge, Bodhan remitted the matter back due to the amendment of suit into one for declaration of title and possession by his judgment, dated 15-01-1995, obviously not coming to any conclusions on the disputed questions of fact. The conclusions about the failure of the plaintiff to prove his exclusive possession since some years prior to the suit were reiterated impugned judgment also and under circumstances, it has to be concluded that the plaint B schedule lands were not proved to be the separate properties of the plaintiff, but are probablised to be the joint family properties of the parties and their father and are being enjoyed by the parties in their respective shares since the partition of the properties between them. Point No.4: While the plaintiff has to fail in view of the conclusions on points 2 and 3, in so far as the bar of limitation for the suit is concerned, there cannot be any clear cut conclusion in the absence of proof of the specific year and time of dispossession of the plaintiff after partition between the brothers and after commencement of the separate enjoyment of their respective 1/3rd shares by the defendants. However, as the plaintiff himself by his positive claims took back the partition between the brothers to more than 22 years, the probablised separate enjoyment of 1/3rd each by defendants 1 and 2 in the suit lands may make the claim of the plaintiff over such shares being hit by bar of limitation under Article 65 of the limitation Act. Point No.5: In view of my findings on other points, the plaintiff has to fail and the appellants have to succeed. But in view of the close relationship between the parties and the prolonged litigation, they can be directed to bear their own costs. In the result, the judgment and decree in O.S. No.6 of 1986 on the file of the Subordinate Judge’s Court, Bodhan, dated 20-12- 1993 are set aside and the said O.S. No.6 of 1986 is dismissed without costs and the appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 23-10-2009 Svv