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Pangaluri Venkatachelapati Rao and ors. Vs. Pangaluri Jayaramayya and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in29Ind.Cas.455
AppellantPangaluri Venkatachelapati Rao and ors.
RespondentPangaluri Jayaramayya and ors.
Cases Referred and Parbati Dasi v. Baikuntha Nath Das
Excerpt:
hindu law - joint undivided hindu, family--act of, trespass committed by committed by one member--benefit to other members--presumption. - .....went by certain names, and he admitted he was in possession of them. the district munsif noted the items in question against the names put to the 1st defendant in his deposition. evidently, what the plaintiffs intended to claim were the lands included in the 1st defendant's patta, exhibit ix (c), though in respect of the lands in question the survey numbers were incorrectly noted in the schedules a and b. the plaintiffs have applied to me now for the amendment of the plaint by the insertion of the correct survey numbers in the schedules a and b, but the matter is one, which has.to be determined by their lordships. the question, however, is not of much impprtance, now that their lordships have practically found that all the lands of swarna were the self-acquisition of the 1st defendant.9......
Judgment:

1. It is argued with reference to isssue 5 that the findings of the lower Courts are based on 1st defendant's prescription against plaintiff and the other members of the family, and that no effective prescription was established. It is alleged in this connection that the lower Courts gave insufficient weight to the facts that the patta was throughout in the name of the father of the family and that 1st defendant was the senior and, therefore, presumably the managing member. Reference has also been made to Narayana v. Krishna 8 M.P 214 and Parbati Dasi v. Baikuntha Nath Das 22 Ind. Cas. 51 : 15 M.L.T. 66 : 12 A.L.J. 79 : 19 C.L.J. 129 : 18 C.W.N. 428 : 16 Bom. L.R. 101 : 26. M.L.J. 248 (1914) M.W.N. 42 as showing that no presumption arises in favour of 1st defendant's ownership in the circumstances of this case. But those decisions are not in point, since they do not deal with acquisition, such as that now in question, which admittedly originated in trespass; and we have been shown no authority for the view that one member of a Hindu joint family must be presumed to have prescribed for the benefit of his co-parceners in such circumstances. In fact both Courts also dealt with this part of the case on this broader ground, the learned Subordinate Judge adopting the District Munsif's conclusions in toto, that the 1st defendant and his brothers including plaintiff had no title to the property and accordingly that there could be no question of prescription as between them. All were trespassers alike and the title, on which the 1st defendant is entitled to rely as against plaintiffs, is based only on his possession, which is admitted. This conclusion is sufficient to justify the determination of the issue in defendant's favour, and it has not been displaced. The appeal, therefore, fails in so far as it relates to the finding on issue 5.

2. Issue 4 was 'whether the defendants Nos. 1 to 8 are in possession of items 17, 18, 19 and 20 of Schedule Aand of items 6, 11 and 13 of Schedule B.'

3. The lower Appellate Court did not find on the question of possession of these items. It found only that they are the self-acquisition of the 1st defendant. We remand the case for a fresh finding on the evidence on record, on issue 4 as to the possession of the items referred to in it.

4. The finding (should be submitted within six weeks from this date and seven days will bo allowed for filing objections.

5. In obedience to the order contained in the above judgment, the Temporary Subordinante Judge of Guntur submitted the following.

6. Finding.--1. I have been directed to submit my finding on issue 4, which runs as follows:

Whether the defendants Nos. 1 to 3 are in possession of items 17, 18, 19, 20 of Schedule Aand of items 6, 11, and 13 of Schedule B.

7. 2. Item 20 in the issue is a mistake admittedly for item 21.

8. 3. I have dealt with these items in paragragh 12 of my judgment. It is conceded now for the plaintiffs that the survey numbers given for these items in the plaint schedules A and B are incorrect and that the correct numbers are those which appear in the 1st defendant's patta, Exhibit IX (c). The schedules did not give the boundaries or the names of the lands, but, when the 1st defendant was examined as the plaintiff's 1st witness, he was questioned as to whether he was not in possession of the lands which went by certain names, and he admitted he was in possession of them. The District Munsif noted the items in question against the names put to the 1st defendant in his deposition. Evidently, what the plaintiffs intended to claim were the lands included in the 1st defendant's patta, Exhibit IX (c), though in respect of the lands in question the survey numbers were incorrectly noted in the schedules A and B. The plaintiffs have applied to me now for the amendment of the plaint by the insertion of the correct survey numbers in the schedules A and B, but the matter is one, which has.to be determined by their Lordships. The question, however, is not of much impprtance, now that their Lordships have practically found that all the lands of swarna were the self-acquisition of the 1st defendant.

9. 4. I find that the lands bearing the survey numbers given to the items in question in schedules A and B, as they now stand, are not in the possession of the defendants Nos. 1 to 3.

10. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following.

11. Judgment.--The lower Appellate Court's finding on the issue remanded is that the lands referred to in the plaint of items 17, 18, 19 and 20 of Schedule Aand 6, 11 and 13 of Schedule B are not in 1st to 3rd defendants' possession. Its correctness is not disputed. Plaintiffs say only that the survey numbers in the plaint are wrong and that they require time to apply to this Court for an amendment. We see no reason for giving time for that purpose. The second appeal fails and is dismissed with costs.


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