Posted On by &filed under High Court, Madras High Court.

Madras High Court
Bapatla Venkata Row vs Bapatla Venkoba Row And Ors. on 29 November, 1926
Equivalent citations: AIR 1927 Mad 595
Author: Reilly


Reilly, J.

1. The plaintiff appeals against the dismissal of the suit for partition by the Subordinate Judge. The suit relates to a family of which the common ancestor, as is now not disputed, was Kanchiraju. He was great-grand father of the plaintiff and great-great-grandfather of Defendant 1. At the trial it was denied by Defendant 1, or rather by Defendant 2, as Defendant 1, his father, died a few days after the suit was instituted, that the plaintiff and his two brothers, Defendants 5 and 6, belonged to the family at all. The plaintiff’s case is that his father, Suryanarayana, was adopted by Krishnayya I, the son of Kanchiraju I. The Subordinate Judge has found in favour of the adoption, and that is not now disputed before us.

2. It is denied in Defendant 1’s written statement that the property concerned is joint family property at all, and it is alleged that it was acquired by Defendant 1’s grandfather Kanchiraju II. But it appears from Ex. A, a statement by Defendant 1’s father, Venkayya, at an Inam enquiry in 1864, that the family was joint at that time. If that statement is read with the genealogy attached to it, I do not think it is possible to accept Mr. Venkataramana Rao’s contention for Defendant 2, in regard to it that it does not show that the family was joint at that time and had as its joint family property the thope to which the statement relates. So I think we must start with the fact that this was a joint family in 1864. It is suggested for Defendant 2, that Ex. II an extract from the Inam Register in 1869, shows that at least by that time the family had become divided. But, when Ex. II is examined, it is seen that it does not refer to the same property as that to which Ex. A, relates but that it refers to a separate Inam granted to Defendant 1’s great-grandfather, Venkayya, the brother’ of Krisnayya I. The fact that that branch of the family had a separate inam does not show that the whole family was not joint. In 1904 we find that Defendant 1 made a statement to the Tahsildar, Ex. C (2), in regard to the house which stands upon the site in Bapatla town with which this suit is concerned. He then said that the roof of that house had been on it for 70 or 80 years and that the site had been in the enjoyment of his forefathers from time immemorial, ever since the village came into existence. The 70 or 80 years which he mentions it will be seen would go much further back than the date of Ex. A. Now this family has as its family name “Bapatla”, which indicates that their family house was in Bapatla. There is no evidence whatever that there is any other house in Bapatla which was ever occupied by them as their family house. When the existence of the family as a joint family in 1864 is taken with Defendant 1’s statement about the house in 1904. I think the only reasonable inference is that the house with which we are concerned was the family house of the joint family. It has been suggested that the house mentioned in Ex. C. (2) has not been identified by clear evidence with the house with which we are concerned. But it does not appear that the identity of the house was ever disputed before the Subordinate Judge.

3. There is no definite evidence that this joint family was divided at any particular time, and that would be very curious if there had been a definite partition because after all 1864 is not so very long ago. But it does not follow that because the house and its site were joint family property, the plaintiff has still a right to ask for a share in them. It is contended as part of Defendant 2’s case that there is enough to show that there has been such an ouster of the plaintiff’s branch as precludes him from recovering any share in the property now. The site is one in the Bazar Steet of Bapatla. It is admittedly very valuable now and must have been valuable for many years. On this site it appears that there were originally two houses and a thatched shed.

4. The evidence is that one of those houses and the thatched shed were pulled down by Defendant 1, and in the compound and on their sites he constructed 15 to 20 years ago or longer 13 godowns, the rental value of which appears from Ex. D to be Rs. 150 a year each and that he also built an upper storey on the remaining house at a cost of Rs. 4,000 or Rs. 5,000. All this represents a large outlay. There is nothing to suggest that the joint family could have provided the funds or even a small fraction of the funds necessary for those operations. The evidence of a few witnesses for the plaintiff who say that they advanced rent in recent years in comparatively small sums, does not show that anything more was got in that way than might have been required for repairing the godowns and their evidence relates mainly to 1918. It appears therefore that Defendant 1, who admittedly had these buildings constructed raised the funds quite apart from the joint family. It is not disputed that Defendant 1, and his branch of the family have been living in this house from the time of of Kanchiraju I, but it is clear from the evidence that for very many years the plaintiff’s branch has never occupied the house regularly The plaintiff’s grandfather Krishnayya, I, was in the service of the Vizianagaram estate; so was the plaintiff’s father Suryanarayana; so also was Ramayya a nephew of Krishnayya II, the grandfather of Defendant 3. All these members of the family appear to have lived mainly at Vizianagaram coming to Bapatla only on occasions, until they retired from service. Now the mere fact that they did not occupy the family house while they were employed in the Vizianagaram service certainly does not show that they were ousted from the family property in any effective way.

5. But there is a good deal more than that. (The judgment then discussed the evidence and continued as follows.) Now if we put all these things together, do they not show an ouster of the plaintiff’s branch and incidentally Krishnayya II’s branch by defendant? Defendant and his father appear to have treated the property as their own from 1867; and defendant 1 spent a very large sum in raising the main house by another storey and building godowns on the site taking the income from those godowns entirely for himself. Members of the two other branches, Suryanarayana and Krishnayya I, when they were in great need were not taken into the house and do not appear to have attempted to enforce their rights. All this goes back a long way and appears to indicate a regular course of conduct. In a case like this, even when there is no evidence of ouster at a particular time it is not unreasonable that we should infer an ouster as an explanation of the facts as we find them. That that may be done was laid down in Gangadhar v. Parashram [1905] 29 Bom. 300 it is based upon a very old authority relating to tenants in common which may be applied in a case like this, namely Fishar and Taylor v. Prosser, a case heard by Lord Mansfield in 1774; and that principle as also been recognised in Ahmuddin Tamijuddin v. Amiruddin [1918] 44 I. C. 216 a case of the Calcutta High Court, and Parma Pande v. Ram Sarup Panday [1920] 58 I. C. 731 a case of the Patna High Court. Viewing the case in that way I do not think we should be justified in differing from the decision of the Subordinate Judge in regard to adverse possession by another.

6. In my opinion therefore this appeal should be dismissed. But, as defendant 2 has failed in one important aspect of his case, namely his contention that this was not a joint family and the property was even family property, I think the proper order will be that each party should bear his own costs in this Court.

7. The memorandum of objections should be dismissed with Costs.

Kumaraswami Sastri, J.

8. I agree.

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